SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 


SCOTLAND 


AS  IT  WAS  AND  AS  IT  IS 


BY   THE 


DUKE     OFiARGYLL 


VOLUME  FIRST. 


ROB     ROY'S     Mill    SK,     (ILKNBUIRA 

EDINBURGH:    DAVID    DOUGLAS 

MDCCCLXXXVII 


\.4ll  fightg  reterred.} 


JA 


PREFACE. 

««  HISTORY    has    now   taken    its    place    among    the 

v>  Sciences  which  must   be  studied  on  the  principle, 

«and  according  to  the  methods,  of  the   Division  of 

3  Labour.    Its  larger  outlines  have  indeed  been  traced 

already,   and    some  of  them,  at   least,  by   master 

hands.     But  our  growing  knowledge  has  raised  a 

growing  sense  of  the  volume  that  we  have  yet  to 

^  learn.     The  problems  of  human  life  are  felt  to  be 

&  infinitely  complex,  and  the  facts  which  throw  real 

light  upon  them,  are  seen  to  be  of  a  corresponding 

character.     No  one  mind  can  recognise,  or  record, 

,  or  classify,  more  than  a  fraction  of  them.     Mere  out- 

95  lines,  even  when  not  positively  misleading,  are  at 

^  the  least  wholly  insufficient.     It  is  the  work  of  our 

u3  time  to  fill  up  such  outlines  by  the  careful  study  of 

^P* 

particular  epochs, — of  some  particular  class  of  facts, 
—or  of  some  special  chain  of  causes.  The  field  is 

a  wide  one,  and  the  harvest  is  immense.  Many 
g  who  have  neither  the  leisure,  nor  the  learning,  to 
§  take  up  the  task  of  the  general  Historian,  may 

have  excellent  opportunities  of  knowing  thoroughly 


3871288 


VI  PREFACE. 

doings  and  transactions  which  have  a  deep  root 
and  a  wide  significance.  With  no  other  qualification 
than  an  eye  habituated  to  the  perception  of  certain 
truths,  such  writers  may  render  invaluable  service. 
And  if  their  own  business  or  calling  has  been  of  a 
kind  which  is  connected  with  the  earliest  times, 
and  with  the  oldest  elements  in  human  civilisation, 
any  careful  analysis  of  that  business,  as  it  has  been 
conducted  in  the  past,  and  as  it  exists  at  the 
present  time,  cannot  fail  to  be,  at  least,  a  useful 
contribution  to  the  vast — the  yet  unaccomplished 
—work  of  History. 

In  the  following  pages  I  have  desired  to  offer 
such  a  contribution — and  nothing  more.  They 
deal  with  one  great  group  of  causes  in  our  national 
progress,  and  they  deal  with  that  group  alone. 
Other  causes  are  either  not  touched  at  all,  or  they 
are  alluded  to  only  by  the  way.  Nothing,  for  ex- 
ample, has  been  more  peculiar  in  Scotland  than  the 
direction  which  the  Reformation  took.  Few  causes 
have  affected  so  powerfully  the  national  character 
ever  since  1560.  But  except  as  connected  with 
the  (Jivil  Wars,  and  some  consequent  movements 
of  the  population,  I  have  left  it  out  of  the  account.1 
In  like  manner  the  immense  influences  of  Literature 
and  Science  are  passed  by,  except  in  so  far  as  both 

1  Thirty  years  ago  I  dealt  with  this  subject  in  another  work, 
Prrsltytvry  EMI  mined. 


PREFACE.  ,.    -  Vll 

are  connected  with  the  progress  of  the  Arts,  and 
of  Mechanical  Invention.  Nevertheless,  the  special 
current  of  events,  and  the  special  group  of  causes 
which  have  been  followed  here,  are,  beyond  all  ques- 
tion, among  the  deepest  and  most  powerful  in  the 
History  of  Civilisation.  They  concern  the  amalga- 
mation of  Races,  the  consolidation  of  a  National 
Government,  the  beginnings  of  Law,  the  rise  of 
Industries,  the  origin,  the  growth,  and  the  working 
of  these  accepted  doctrines  of  Society  which  con- 
secrate and  establish  the  respective  rights,  and  the 
mutual  obligations,  of  Men. 

I  need  not  apologise  for  the  use  I  have  made  of 
Family  Papers.  The  value  of  such  documents  has 
long  been  universally  recognised  as  among  the  best 
materials  of  History.  Several  Literary  Clubs  did 
much,  in  the  earlier  part  of  this  century,  to  render 
them  more  accessible.  Increasing  interest  is  every- 
where being  taken  in  them.  The  sumptuous 
volumes  of  Family  History  published  under  the  care, 
and  edited  with  all  the  learning,  of  Dr.  William 
Fraser,  C.B.,  LL.D.,  Deputy-Keeper  of  the  Records 
of  Scotland,  are  a  mine  of  information  on  the  habits 
and  manners  of  the  Military  Ages.  Yet,  unfortu- 
nately, few  families  have  taken  care  to  preserve 
documents  giving  any  details  of  Estate  manage- 
ment. The  Book  of  Taymouth — often  referred  to  in 
the  following  pages — has  a  special  value  in  this 


Vlll  PREFACE. 

point  of  view.  For  the  most  part,  each  generation 
worked,  in  these  matters,  unconsciously  —  not 
knowing,  or  even  dreaming  that  in  the  ordinary 
administration  of  Property,  they  were  making 
History,  in  one  of  the  most  important  of  its 
branches.  It  so  happens  that  documents  of  this 
kind,  relating  to  critical  epochs,  have  been  pre- 
served in  unusual  abundance  by  some  of  my  pre- 
decessors. Yet  one  of  the  most  interesting;  of 

o 

these — the  Report  of  Duncan  Forbes  of  Culloden 
in  1737 — was  very  nearly  lost.  It  was  found 
among  the  papers  of  Lady  Mary  Coke,  youngest 
daughter  of  John  (third)  Duke  of  Argyll  and 
Greenwich,  and  was  returned  to  me  by  the  kind- 
ness of  the  present  Earl  of  Home,  into  whose  posses- 
sion it  had  passed.  Old  Leases  seem  everywhere 
to  have  been  very  generally  destroyed.  Yet  it  is 
needless  to  say  that  they  are  very  important  docu- 
ments, not  only  in  the  History  of  Tenures,  but  also 
in  tracing  the  advancing  practices  of  Husbandry. 
Of  these  I  am  fortunate  in  having  a  tolerably 
complete  series  from  the  beginning  of  the  Eigh- 
teenth Century,  as  well  as  whole  Volumes  of 
Instructions  in  all  the  details  of  administering 
Estates  much  larger  than  those  which  I  now  pos- 
sess, issued  by  my  grandfather,  John,  fifth  Duke 
of  Argyll,  during  the  most  critical  epoch  of  Agri- 
culture in  Scotland,  from  1770  to  1806.  He  was 


PREFACE.  IX 

one  of  the  great  Improvers  of  his  time ;  and  I 
have  had  the  further  advantage  of  the  large  collec- 
tion which  he  has  left  of  Books  and  Pamphlets  on 
all  branches  of  Rural  Economy.  My  only  difficulty 
has  been  to  limit  within  any  reasonable  compass 
the  superabundant  evidence  which  all  these  sources 
of  information  afford  in  illustration  of  the  narrative 
I  have  presented  of  a  memorable  History. 

The  Woodcuts  in  these  Volumes  have  been 
taken  from  drawings  of  my  own  which  pretend  to 
no  artistic  merit,  but  which,  from  having  been  made 
chiefly  for  geological  purposes,  are  scrupulously 
accurate  as  regards  the  outlines,  surfaces,  and  struc- 
ture, of  the  mountains.  In  such  scenes  as  those 
connected  with  the  view  of,  and  from,  lona,  I  have 
always  felt  it  a  great  pleasure  to  remember  that 
although  all  superficial  objects,  such  as  buildings, 
trees,  etc.,  are  of  comparatively  recent  date,  yet 
the  aspect  of  the  Hills  is  almost  unchanged,  and 
the  contours  of  Sea  and  Land  are  exactly  as  they 
were  when  the  great  Missionary  of  the  early  Celtic 
Church  landed  on  its  shores  in  the  Sixth  Century. 
In  like  manner  the  scene  of  Robert  Bruce's  en- 
counter with  the  Macdougals,  Lords  of  Lome,  at  the 
foot  of  Ben  Cruachan,  is  in  all  probability  almost 
exactly  what  it  was  at  that  time.  The  drawings 
of  the  Mountains  of  Soulvein,  and  of  Queenaig,  in 
Sutherland,  exhibit  some  of  the  most  remarkable 


X  PREFACE. 

hill-forms  in  Scotland.  These  mountains  are  also  of 
great  interest  in  Geology,  consisting  almost  entirely 
of  the  red  "  Cambrian  Sandstone,"  out  of  which  their 
precipitous  outlines  have  been  cut  or  broken,  by 
some  series  of  movements,  and  of  other  operations, 
which  Science  has  much  difficulty  in  explaining. 
The  lower  hills  and  rocks  from  which  these  curious 
mountains  rise,  are  all  of  a  totally  different  material, 
and  of  a  much  earlier  period  in  time.  I  may  add 
that  in  the  view  of  Queenaig,  the  summit  at  the 
right-hand  extremity  of  the  liange,  is  the  same 
summit  which  is  depicted,  from  a  different  point  of 
sight,  in  the  Frontispiece  of  the  later  editions  of 
Murchison's  celebrated  and  classical  Geological 
Work,  Siluria. 

The  view  on  the  title-page  of  this  volume 
represents  the  situation  of  a  cottage  which  was  the 
home  of  ".Rob  Roy"  during  many  years,  and  in 
which  his  children  were  born.  It  is  between  two 
deep  ravines,  easily  defended.  Very  lately  the 
handle  of  his  "  Skian  Dubh,"  or  stocking  knife, 
was  found  imbedded  in  the  turf,  near  the  walls. 
It  is  made  of  a  sheep's  horn,  and  bears  roughly  cut 
upon  it  the  letters  "  R.  MCG." 

ARGYLL. 

INVEKAKAY,  Jan.  1887. 


CONTENTS    OF    VOL.     I. 


CHAPTER  I. 

PACK 

CELTIC   FEUDALISM,  .....  1 


CHAPTER  IT. 

THE   AGE   OF   CHARTERS,    .  .  .  .  .46 

CHAPTER  III. 

THE   AGE   OF   COVENANTS,  .  .  .100 

CHAPTER  IV. 

THE   EPOCH   OF   THE   CLANS,  .  .  .  .178 

CHAPTER  V. 

THE   APPEAL   FROM   CHIEFS   TO   OWNERS,  .  .  .238 


ILLUSTRATIONS. 

IlOB  ROY'S    I  !<>[  M,    Gl.KNSIIIllA,    [NVKItAKAY,  ....  .  )'(>/, I.  f,'i 

THE  CATHEDRAL,  AND  POSITION  OK  THK.  OLD  MONASTIC  SITUS  ON  IONA,            .           .  la 

BEN  CKUAOHAN  AND  RAVINK.    SITE  OK  BATTLK  BETWEEN  BUICK  AND  Loans  OK  IXIUNK  IN  1308,  .  7^ 

THK  VIEW  COLUMBA  SAW  KKOM  HIS  MONASTERY  ON  IONA,           ......  218 

I. in  ii  KILK.IAKAN.    CAMPHELLTOWX  HAKHOUK,         .          .          .          .          .          .          .          .  8T6 

DUNAVKKTY,  AND    MUM.  OK  KlNTVKK.     STRONGHOLD  OK   (  I.A.N    DoNXKI..       KED  CONGLOXERATK  Koi'K,  278 


CHAPTEE  I. 

CELTIC   FEUDALISM. 

THE  full  and  fast  river  of  our  time  has  many  curious 
eddies  in  its  course,  and  none  are  more  curious  than 
those  which  carry  the  looks  and  the  longings  of  men 
back  to  primitive  conditions  of  society.  Such  long- 
ings are,  moreover,  always  accompanied  by  the  most 
strange  assumptions  as  to  what  primitive  condi- 
tions really  were.  The  causes  of  this  tendency  are 
clear  enough.  The  Battle  of  Life  is  sore  on  many, 
and  it  is  only  natural  that  they  should  envy  a  time 
when,  as  they  imagine,  there  was  no  such  battle,  or 
when  victory  was  equally  easy  to  all  the  com- 
batants. Yet  nothing  can  be  more  certain  than 
there  never  has  been  such  a  time  since  the  gates  of 
Eden  closed.  Of  the  condition  of  Man  in  the  days 
which  were  really  primeval  we  are  absolutely 
ignorant.  But  as  we  see  him  in  the  light  of  the 
very  earliest  traditions,  we  see  him,  as  he  is  now,  a 
Being  bound  to  labour  with  hand  and  brain,  and  a 
Being  fitted  for  both  these  kinds  of  labour,  with 
great  varieties  of  faculty  in  each,  and  with  deep- 
seated  inequalities  of  power.  In  the  very  earliest 
narratives  and  traditions  of  the  Jews  we  see  men 
already  divided  into  tillers  of  the  ground  and  into 

VOL.  I.  A 


SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

keepers  of  herds  and  flocks.  Both  of  these  esta- 
blished avocations  pre-  suppose  a  long  course  of 
effort,  and  of  all  the  needs  under  which  effort  is 
evoked.  Moreover,  when  individual  Personalities 
are  dimly  seen,  we  see  them  divided,  as  they  are 
divided  now,  not  only  according  to  inequalities  of 
mental  aptitude,  but  according  to  inequalities,  cut- 
ting deeper  still,  between  the  good  and  the  bad, 
between  the  virtuous  and  the  vicious.  Moral 
qualities,  even  more  than  intellectual  gifts,  have 
in  all  ages  been  the  great  secret  of  individual 
success.  From  the  first  the  sacrifices  of  some  men 
have  been  rejected,  because  of  "  sin  lying  at  the 
door."  And  when  real  History  begins  it  is  always 
the  figures  of  Great  Men  that  first  appear  upon 
the  stage.  They  are  the  centre  of  every  group. 
They  are  the  reason  and  the  cause  of  every  move- 
ment. The  personal  qualities  which  had  secured 
to  Abraham  his  great  pastoral  wealth  in  Ur  of  the 
Chaldees,  were,  we  may  be  sure,  the  same  qualities 
on  account  of  which  the  exclusive  possession  of  a 
whole  country  was  promised  to  him  and  to  his 
children.  That  was  the  earliest  Land  Charter  of 
which  we  have  any  knowledge.  But  it  was  a 
Charter  which  could  not  be,  and  was  not  fulfilled, 
except  by  battle.  Without  the  sword  of  Joshua, 
neither  the  faith  of  Abraham  nor  the  lawgiving  of 
Moses  would  have  placed  the  chosen  People  in 
possession  of  the  Promised  Land. 

And  so   it   has  been    ever   since.      In   all   the 
early  movements  of  Mankind  the  great  qualities  of 


CELTIC  FEUDALISM.  3 

individual  men  have  been  the  cause  of  every  success, 
the  foundation  of  all  authority,  and  the  indispens- 
able condition  of  all  secure  enjoyment.  With  the 
single  exception  of  the  glimpse  presented  to  us  of 
the  condition  of  Palestine  between  the  arrival  of 
the  great  Patriarch  at  Mamre,  and  the  migration 
of  his  children  into  Egypt,  we  have  no  knowledge 
of  any  ancient  people  who  were  able  to  occupy  a 
land  so  comparatively  empty  that  they  could  live  in 
it  without  fighting.  The  beautiful  story  of  the  part- 
ing of  Abraham  and  of  Lot l  is  the  earliest  account 
we  have  of  a  dispute  about  the  possession  of  land, 
and  contains  within  itself  almost  the  whole  philo- 
sophy of  the  dispersion  of  Mankind.  But  it  was  a 
case  of  dispersion  under  conditions  which  were  not 
and  could  not  be  lasting — conditions,  namely, 
under  which  vast  tracts  of  country  were  as  yet 
unappropriated.  Even  then,  strange  to  say,  we  are 
told  that  there  were  many  native  Tribes  already 
established  in  the  land,  and  that  famines  were  occa- 
sionally sore  among  them.  It  can  only  have  been 
an  occupation  on  sufferance  that  was  then  enjoyed 
by  the  Hebrew  brethren  when  they  had  as  yet  no- 
thing of  their  own — "  no,  not  so  much  as  to  set  their 
foot  on."  This  is  clearly  expressed  in  the  speech  of 
Abimelech  to  the  Patriarch  :  "  Behold,  my  land  is 
before  thee,  dwell  where  it  pleaseth  thee."'  The 
assertion  of  an  exclusive  right  of  possession  is  here 
distinct,  as  well  as  the  right  of  granting  a  per- 
missive occupation  to  the  Hebrews. 

1  Gen.  xiii.  5-9.  2  Gen.  xx.  15. 


4  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

But  this  was  not  "possessing  the  land,"  as  they 
hoped  to  possess  it,  and  as  the  promise  was  that 
they  should  possess  it.  Exclusive  ownership  was 
the  promise,  and  with  that  exclusive  ownership  in 
the  hands  of  strangers  there  could  be  no  security 
for  the  chosen  People.  God,  indeed,  had  made 
that  land  of  Canaan  in  the  same  sense  in  which  He 
has  made  "  all  the  corners  of  the  earth."  But  He 
had  not  made  it  for  all  men,  but  for  that  particular 
family  of  men  whom  He  made  strong  to  take  it,  and 
who  continued  to  hold  it — until  by  un faith  they 
lost  it,  and  its  sceptre  departed  from  them.  No 
other  conquering  Tribe,  indeed,  has  ever  been 
charged  with  the  same  mission,  or  has  brought  the 
same  gifts  to  men.  But  it  may  be  said  with  truth 
that,  generally  speaking,  every  conquering  Tribe  has 
had  some  mission,  and  has  added  something  above 
its  fellows,  and  above  its  enemies,  to  the  progress  of 
the  world.  And  although  we  know  little — curiously 
little — of  those  great  migrations  westward  from 
Central  Asia,  which,  during  several  centuries, 
covered  the  ground  of  Europe  with  fresh  and  ever 
fresher  deposits  of  human  character,  this  at  least 
we  do  know,  that  they  were  always  movements 
of  fighting  men,  continually  reducing  to  bondage 
those  whom  they  overcame,  and  themselves  passing 
under  service  to  the  Leaders  whom  inborn  in- 
equalities of  mind  had  raised  to  positions  of  com- 
mand. 

The  famous  and  powerful  sketch  which  has  been 
left  by  Tacitus  of  the  German  Tribes,  as  they  were 


CELTIC  FEUDALISM.  5 

known  by  him,  does  indeed  present  a  picture  of  social 
equality,  in  which  personal  pre-eminence  found  only 
a  personal  and  temporary  recognition.  And,  no 
doubt,  so  long  as  they  remained  in  their  own  woods 
and  marshes,  fighting  with  none  but  inferior  races, 
living  only  on  cattle  and  on  the  chase,  neither 
having  nor  desiring  a  settled  life  with  peaceful  and 
agricultural  pursuits,  the  Polity  described  by  Tacitus 
might  be  strong  enough.  But  we  know  what 
followed.  Even  in  his  description  we  see  that  the 
hereditary  principle  had  begun  to  work.  Mere 
youths  were  admitted  to  the  dignity  of  Chiefs  if 
their  fathers  had  been  illustrious.1  Nothing  more 
was  needed.  A  root  which  is  deeply  rooted  in  human 
nature  had  begun  to  sprout.  During  the  dim  cen- 
turies when  the  Barbarian  nations  were  gathering 
behind  the  forests  of  Germany  and  the  marshes  of 
the  Danube,  coming,  as  Tacitus  ignorantly  supposed 
that  no  migratory  nations  could  come — not  by  sea, 
but  overland  from  distant  centres  of  origin  and 
overflow — during  those  dim  centuries  the  Germans 
and  all  the  swarms  above  them  to  the  North,  and 
behind  them  to  the  East,  were  closing  their  ranks, 
and  consolidating  their  strength  under  that  one 
great  Polity  which  by  its  inherent  strength  sur- 
vived every  other — the  Polity  of  military  subor- 
dination, and  of  Power  regulated  and  transmitted 
through  hereditary  succession. 

There  is  no  greater  mistake  than  to  suppose 

1  Insignia  nobilitas  aut  magna  patrum  nierita,  principio  dignationcm 
etiam  adolescentulis  adsignant. — (Tacit.,  Germ.,  c.  13.) 


G  SCOTLAND  AS  IT  WAS  AND  AS  IT   IS. 

that   this    Polity,    which   culminated   in    the    code 
of  law  and  usages   since  grouped  under  the  name 
of  the   Feudal   System,   was  founded    on  any  un- 
natural   usurpation,    or    that   the    authority   which 
came  to  be  vested  under  it  in  Chiefs  and  Kings, 
was    anything   more   than    an    embodiment    of  the 
facts  of  Nature,  and  an  expression  of  the  insuper- 
able   necessities  of  the   case.      Under   such  condi- 
tions  of  fierce  competition,  determined  always  by 
the  arbitrament  of  arms — conditions  of  perpetual 
and  chronic  war — it  was  not  possible  that  success 
could  be  attained,  or  civilisation  could  be  established, 
except  by  resting  upon  those  through  whom,  and  by 
whom,  Power  could  be  wielded  best.     Thus,  for  ex- 
ample, the  feudal  principle  that  every  holder  of  land 
must  hold  it  under  tenure  from  some  Superior  in  whom 
the  dominion  lay — this  principle  did  not  grow  out  of 
any  theory,  but  was  the  simple  recognition  of  the 
facts  of  life.      It  had  come  to  be  true  as  one  of  the 
necessities  of  the  age,  long  before  it  was  formally 
recognised  as  one  of  the  doctrines  of  the  law.    There 
is  no  value  in  land  except  when  it  can  be  held  in 
peace.     But  in  times  when  there  was  a  universal 
scramble  for  the  possession  of  it  by  rival  Tribes,  it 
never  could  be  held  in  peace  except  under  the  pro- 
tection of  those  who  were  strong  enough  to  defend 
it.     And  no  man  could  have  this  strength  except 
by  leaning  on  the  existing  organisation  of  society, 
and  on  the  personal  authority  of  those  who  were  at 
its  head.      Nor  is  there  any  truth  in  the  idea  whicli 
has    been    sedulously   spread    that    those    among 


CELTIC  FEUDALISM.  7 

northern  races — the  Celts — who  were  the  last  to 
accept  the  Feudal  System  in  its  final  form,  were 
races  who  lost  by  that  acceptance  any  individual 
freedom  or  any  social  equality  which  they  had 
enjoyed  before.  The  truth  is  all  the  other  way. 
Amongst  the  Celtic  Tribes  the  same  general  causes 
had  not  only  established  the  same  dependence  of 
the  body  of  the  people  on  the  authority  of  Kings 
and  Chiefs,  but  had  made  this  dependence  much 
more  arbitrary  and  oppressive  than  amongst  the 
Saxon  and  other  Teutonic  Tribes,  or  under  the  per- 
fected forms  of  Feudalism. 

The  usages  which  spring  up  in  a  rude  condition 
of  society  are  subject  to  development,  like  other 
things,  in  two  very  different  directions.  When  the 
conditions  are  favourable  to  the  establishment  of  a 
settled  government  and  of  an  advancing  civilisation, 
these  usages  become  more  and  more  subject  to 
reason  and  to  judicial  definition  ;  whatever  elements 
there  were  in  them  of  mere  despotism  and  injustice 
are  dropped  out  or  softened  down  ;  and  finally,  all 
the  elements  which  remain  become  built  up  into  a 
well-ordered  system  of  Government  and  of  Law. 
When,  on  the  contrary,  the  conditions  of  society  are 
not  favourable — among  Tribes  which  are  never 
destined  to  grow  into  great  Nations — such  usages 
become  subject  to  a  development  very  different 
indeed.  It  is  the  development  of  corruption.  The 
grosser  elements  assert  themselves  more  and  more  ; 
they  become  not  only  stereotyped,  but  enlarged 
and  strengthened.  What  began  in  mere  violence 


SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

becomes  still  more  violent,  what  was  always  unde- 
fined becomes  more  and  more  purely  arbitrary. 
What  was  due  originally  to  natural  power  and  to 
just  authority  becomes  yielded  up  to  the  purest 
tyranny — until  the  whole  system  may  grow  into 
one  of  chronic  rapine  fatal  to  any  progress  in 
wealth,  or  in  government,  or  in  law. 

Of  all  these  processes  there  never  has  been  a  more 
conspicuous  example  than  in  the  customs  and  usages 
of  that  branch  of  the  Celtic  race  which,  pushing  far- 
thest west,  possessed  itself  of  Ireland.  There — in 
that  remotest  region  of  Europe — it  became  secluded 
from  the  movements  and  the  life  of  the  continental 
world.  It  may  be  true  that  in  the  Brehon.  Laws 
we  have  traces  and  relics  of  a  time  when  Celtic 
usages  and  ideas  were  the  same  as  those  of  all  their 
Aryan  brethren — and  which  in  the  hands  of  one 
great  nation  led  on  to  the  glorious  history  of  the 
Twelve  Tables.1  But  all  the  germs  of  good  had 
been  well-nigh  wholly  killed,  and  the  absence  of  any 
central  authority  had  allowed  every  weed  to  grow. 
The  elaborate,  learned,  and  conscientious  Work 
of  Mr.  Skene,2  gives  us  probably  as  much  as  we 
shall  ever  know  of  the  earliest  organisation  of 
society — if  organisation  it  can  be  called — among  the 
Scoto-Irish  Celts.  It  began  with  all  the  elements 
of  inequality  which  we  find  at  the  foundations  of 
every  society.  In  the  first  place,  it  began  with  the 
conquest  of  some  so-called  aboriginal  race  which 

1  Maine's  Early  H  tutor  y  of  Institutions,  p.  19. 

2  Celtic  ticotlantl,  vol.  iii.  c.  iv. 


CELTIC  FEUDALISM.  9 

was  reduced  to  bondage.  In  the  second  place,  it 
began  in  the  leadership  of  Chiefs,  who  from  the 
first  seem  to  have  enjoyed  greater  ascendency  than 
among  the  Teutonic  Tribes.  In  the  third  place, 
among  the  men  who  were  nominally  equal  in  re- 
spect to  freedom,  there  was  a  very  early  develop- 
ment of  those  differences  in  wealth  which  spring 
directly  from  the  ineradicable  distinctions  of  per- 
sonal gifts.  We  are  accustomed  to  think  of  the 
word  "  capital "  as  denoting  a  form  or  condition  of 
wealth  which  belongs  to  later  stages  of  human 
society.  But  this  is  a  complete  mistake.  Both 
the  word  and  the  thing  come  down  to  us  from 
archaic  times.  When  flocks  and  herds  were  almost 
the  only  embodiments  of  wealth,  all  the  power 
which  riches  can  ever  give  was  vested  in  the  man 
who  by  strength  or  skill  had  become  possessed  of 
more  sheep  and  oxen  than  his  neighbours.  When 
tillage  hardly  existed,  and  when  land  had  all  its 
value  from  the  cattle  it  would  feed,  no  man  could 
possess  land  except  by  having  stock  to  eat  its 
grass.  These  were  the  "  capital "  —the  Heads  or 
Capita — which  alone  constituted  wealth,  and  he  who 
had  none  of  these  could  only  hire  them  from  the 
stronger  and  the  abler  men  who  had  them.  Then, 
as  money  was  hardly  known,  the  hire  must  consist 
mainly  in  services  of  some  kind  in  addition  to  some 
share  of  produce.  This,  therefore,  was  another 
door,  besides  Tribal  allegiance  or  military  sub- 
ordination, through  which  the  ranks  of  Bondsmen 
were  recruited,  and  the  authority  of  Chiefs  became 


10  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

more  and  more  firmly  established.  It  is  not  a 
little  remarkable  that  the  earliest  title  in  Celtic- 
society  which  practically  corresponds  to  the  modern 
idea  of  "  landlord"  was  a  word  signifying  "  cattle- 
lord."  This  was  the  Bo-aire — the  Cow-lord.  It 
was  by  paying  service  to  him  that  poorer  men 
could  alone  secure  the  enjoyment  of  that  which  was 
then  the  prime  necessity  of  life.1 

Nor  was  this  direct  form  of  hire  the  only  form  in 
which  the  weaker  members  of  a  Tribe  came  to  owe 
and  to  render  service  to  its  Chiefs.  When  wars  of 
conquest  ceased,  intertribal  wars  began.  These 
were  continual  and  fierce.  The  earliest  records  of 
Irish  Celtic  society  show  it  to  have  been  a  society 
torn  by  continual  contests  in  which  every  victory 
was  followed  by  plunder  and  devastation.  The  one 
great  necessity,  therefore,  of  even  the  beginnings  of 
peaceful  and  agricultural  life  was  the  necessity  of 
protection.  And  this  protection  could  only  be 
secured  from  those  who  wielded  the  authority  of 
arms.  To  get  this  protection  service  would  be 
rendered  as  its  price.  And  besides  the  services 
rendered  always,  even  in  the  intervals  of  peace, 
special  and  extraordinary  services  would  be  will- 
ingly rendered  in  times  of  actual  danger,  or  under 
any  circumstances  demanding  the  special  action  of 
the  Chiefs.  Thus  on  a  multitude  of  occasions,  and 
under  a  great  variety  of  circumstances,  customs 

1  Skcne's  Celtic  Scotland,  vol.  iii.  pp.  143,  144.  Curiously  enough, 
"  Booer  "  is  the  word  now  used  in  the  West  of  Scotland  for  the  man  to 
whom  farmers  let  their  dairy  eows  by  contract,  and  who  sells  the 
produce. 


CELTIC  FEUDALISM.  1 1 

and  usages  would  establish  a  corresponding  variety 
of  dues  and  of  services  from  the  ordinary  members 
of  the  Tribe  towards  those  who  ruled  it  and 
defended  it.  No  less  than  seven  different  causes 
have  been  enumerated  on  account  of  which  free 
men  willingly  came  under  terms  of  servitude  to 
Chiefs.  And  then  when  servitude  had  once  been 
accepted,  it  became  permanent.  Bondage  was 
even  more  hereditary  than  freedom.  Then,  again, 
as  the  earliest  Tribal  organisation  broke  up  into 
the  later  organisation  of  Septs  or  Clans,  every 
step  of  the  change  involved  some  increase  to  the 
natural  and  necessary  pre-eminence  of  those  who 
led.  Their  power  of  inviting  and  accepting  the 
adoption  and  amalgamation  of  "  broken  men"  from 
other  Tribes — men  who  necessarily  became  direct 
dependants  on  themselves — was  a  power  which,  in 
being  necessary  to  the  growth  and  to  the  strength 
of  the  Clan  as  a  whole,  was  at  the  same  time 
specially  conducive  to  the  concentration  of  that 
power  in  the  hands  of  its  Chief. 

During  more  than  600  years  from  the  time  when 
Tacitus  described  the  German  Tribes,  these  changes 
were  working  themselves  out  among  the  Celts  in 
the  profound  obscurity  of  Ireland.  The  first  dis- 
tinct glimpse  we  have  of  them  is  in  the  strange 
way  in  which  they  affected  even  the  organisation 
of  the  early  Christian  Church,  which  to  a  very 
large  extent  was  shaped  in  Ireland  after  the  habits 
and  ideas  of  the  Celtic  Tribes  and  Septs.  Its  great 
Monastic  Institutions  were  essentially  Tribal.  The 


12  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

Abbots  were  rulers  in  virtue  of  their  birth,  after 
the  manner  of  succession  which  prevailed  among 
their  Chiefs  and  Kings.  But  Christianity  supplied 
rules  and  imposed  restraints  to  which  there  was 
nothing  comparable  outside  the  Church.  There  is 
a  horrible  but  picturesque  story  of  the  end  of  the 
Seventh  Century,  which  illustrates  both  how  this 
influence  was  used,  and  the  utter  barbarism  of  the 
people  which  called  for  its  interference.  The  cele- 
brated Monastery  of  lona  was,  as  is  well  known,  a 
colony  of  the  Scoto-Irish  Church,  founded  by 
Columba  in  the  Sixth  Century.  One  of  his  succes- 
sors was  Adamnan,  who  was  Abbot  of  lona  about 
one  hundred  years  later,  and  died  in  704.  The 
mother  of  this  Abbot,  living  in  Ireland,  is  said  to 
have  been  greatly  shocked  by  seeing  a  battle  in 
which  women  were  engaged  on  both  sides,  and 
especially  by  the  sight  of  one  woman  transfixing 
her  opponent,  also  a  woman,  through  the  breast 
with  a  reaping-hook.  Urged  by  his  mother, 
Adamnan  undertook  a  journey  to  Ireland  in  order 
that  he  might  obtain  from  an  Assembly  of  Chiefs 
and  Abbots  an  abolition  of  such  practices.  This  he 
succeeded  in  doing.  But  it  appears  that  the  exist- 
ence of  fighting  women  had  arisen  from  the  native 
Celtic  usages  of  a  Tribal  Feudalism.  Even  if  this 
story  be  legendary  in  some  of  its  details,  it  is  at 
least  a  genuine  Irish  legend.  The  Celtic  Book 
of  Lecan  fortifies  its  tale  by  this  emphatic 
parenthesis — "for  men  and  women  went  equally  to 
battle  at  that  time."  The  Tribal  obligation  of 


CELTIC  FEUDALISM.  13 

"Hosting"  included  women.  It  seems  to  have 
been  regularly  exacted  among  the  Scoto-Irish  Celts, 
and  the  reform  which  the  Christian  Abbot  succeeded 
in  obtaining  was  simply  the  exemption  of  women 
from  a  custom  which  must  have  had  most  savage 
and  demoralising  effects.  The  name  given  in  Irish 
annals  to  this  reform  marks  its  extraneous  origin— 
which  was  no  other  than  that  one  abounding  foun- 
tain from  which  so  much  has  flowed  that  we  value 
most — the  high  instincts  of  the  Latin  Church  seek- 
ing their  expression  in  the  noble  forms  of  Roman 
Law.  Thus  the  new  exemption  of  women  was 
called  the  "Lex  Innocentium."1 

But  the  Irish  Church  was  at  this  time  too  Tribal 
in  its  own  constitution  to  enable  it  to  be  an 
effective  leader  in  further  secular  reforms,  and  so 
the  old  Irish  Celtic  customs  respecting  land,  in 
contact  with  no  higher  civilisation,  became  more 
and  more  arbitrary  and  oppressive,  and  culminated 
in  a  system  of  tenure,  of  dues  and  of  exactions, 
which  was  the  most  barbarous  in  the  world.  They 
were  indeed  utterly  incompatible  with  any  progress 
in  the  arts  of  peace.  And  all  this  was  of  purely 
native  and  purely  Celtic  growth.  There  is  no 
clearer  misrepresentation  of  history  than  to  pre- 
tend that  the  miseries  of  the  Irish  people  in  respect 
to  the  tenure  of  their  land  were  due  to  the  English 
conquest,  or  to  the  introduction  at  that  time  of 
foreign  laws  overriding  the  native  liberties  and  cus- 
toms of  the  country.  They  were  due,  on  the  con- 

1  Reeves'  Adamnan,  ed.  1854,  p.  179;  and  Celtic  Scotland,  vol.  ii.  p.  173. 


14  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

trary,  to  the  refusal  of  the  English  invaders  to 
impart  to  the  people  they  conquered  the  benefit  of 
the  higher  and  better  laws  which  had  been  built  up 
in  England  under  legal  modifications  and  interpre- 
tations of  the  Feudal  System.  It  was  the  great 
shame  of  England  and  the  great  curse  of  Ireland 
that  for  many  centuries  the  benefits  of  English  law 
were  rigidly  confined  to  a  few  districts  of  the 
country  ;  that  beyond  those  districts  the  native  laws 
were  considered  good  enough  for  the  people,  and 
that  even  the  English  settlers  were  often  eager  to 
adopt  the  barbarous  customs  which  liberated  them 
from  the  restraints  of  law,  and  left  them  free  to 
turn  the  arbitrary  character  of  native  usages  to 
their  own  account.  "  Hibernicis  ipsis  Hiberniores  " 
was  the  boast  of  some  of  the  Anglo-Norman  settlers  ; 
and  if  this  meant,  as  in  some  cases  it  did,  that  they 
conceived  a  warm  sympathy  and  affection  for  the 
Irish  people,  it  was  a  worthy  boast.  But  if  it 
meant,  as  in  fact  it  did  really  mean  in  a  great 
majority  of  cases,  that  strangers  who  had  known 
and  enjoyed  in  their  own  country  a  higher  code  of 
laws,  nevertheless  gave  up  these  laws  when  they 
landed  in  Ireland,  and  adopted,  and  even  aggra- 
vated, all  that  was  rude  and  uncivilised  in  native 
customs — then  it  hid,  under  a  plausible  phrase, 
one  of  the  greatest  evils  which  afflicted  Ireland, 
and  one  of  the  greatest  derelictions  of  duty  with 
which  the  English  settlers  can  be  charged. 

This  is  all  the  more  curious,  since  we  have  the 
most   certain  historical   evidence    that    long  before 


CELTIC  FEUDALISM.  15 

the  Anglo-Norman  invasion  of  Ireland  the  native 
Feudalism  of  the  Celts  had  at  least  begun  the  same 
course  of  legal  development  which  became  the 
strength  of  England  and  of  Scotland.  There  are 
extant  some  four  or  five  genuine  old  Celtic  Charters 
of  land,  written  in  the  Irish  language,  connected 
with  the  property  of  the  famous  Monastic  establish- 
ment of  Kells  in  county  Meath.  These  documents 
are  of  the  highest  interest  and  importance,  because 
of  the  evidence  they  afford,  from  a  purely  native 
source,  touching  a  subject  on  which  English  testi- 
mony might  be  suspected  of  prejudice.  One  of 
them  is  specially  remarkable  on  account  of  the  fact 
that  in  conveying  an  exemption  from  the  arbitrary 
dues  and  customs  which  were  everywhere  levied 
by  the  Chiefs,  under  the  Celtic  Feudalism,  it 
supplies  us  with  at  least  a  partial  enumeration  of 
these  exactions.  It  sets  forth  that  in  atonement 
for  a  great  crime  a  certain  Chief  grants  to  the 
Monks  of  Cill  Delga  "the  territory  and  lands"  of 
that  name,  with  this  privilege  or  exemption,  that 
"  no  King  or  Chieftain  should  have  rent,  tribute, 
coigny,  or  any  other  claim  upon  it  as  before."  This 
Charter  was  given  about  A.D.  10501 — or  sixteen 
years  before  William  the  Conqueror  invaded  Eng- 
land, and  more  than  120  years  before  Henry  n. 
invaded  Ireland.  It  indicates  very  clearly  that 
the  worst  oppressions  of  Feudalism  had  been  long 
established  among  the  Celts.  Incidentally  these 
old  Celtic  Charters  prove  that  land  had  become 

1  National  Manuscripts  of  Ireland,  Part  ii.  Introd.,  p.  45. 


16  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

commonly  possessed  by  individuals,  and  was  bought 
and  sold  for  definite  sums  in  gold.  One  of  these 
purchases  must  have  been  extensive,  for  it  is 
described  as  including  "meadows  and  bogs."  The 
price  was  30  ounces  of  gold,  a  considerable  sum  in 
those  days  ;  and  lest  any  doubt  should  be  cast  on 
the  validity  of  the  tenure,  it  is  further  specified 
that  the  man  who  sold  it  had  held  it  as  "  his  own 
lawful  land."1  It  would  almost  seem  that  the 
Anglo-Norman  invasion  had  thrown  things  back  in 
Ireland  by  the  mere  force  of  antagonism  and  op- 
position between  the  races.  Certain  it  is  that  the 
exemption  of  lands  by  Charter  from  arbitrary  feudal 
exactions,  which  Ecclesiastics  took  care  to  secure 
even  from  the  native  Celtic  Kings  and  Chiefs,  was 
not  enjoyed  by  the  bulk  of  the  people. 

The  truth  is,  that  nothing  was  or  could  be 
enjoyed  by  the  bulk  of  the  people  under  the  des- 
perate corruption  of  their  native  Chiefs.  As  regards 
the  condition  of  the  poorer  classes  no  change  could 
possibly  be  a  change  for  the  worse  to  them.  They 
were  equally  the  victims  of  most  oppressive  usages 
in  times  of  peace,  and  of  the  most  barbarous  ferocity 
in  time  of  war.  It  must  always  be  remembered 
that  the  first  foreign  invasion  came  at  the  express 
invitation  of  one  of  the  Irish  Celtic  Chiefs — Dermot, 
King  of  Leinster — and  that  this  invitation  was 
addressed  to  Welshmen,  another  branch  of  the  same 
Celtic  stock.  It  must  be  remembered,  too,  that  in 
the  contests  which  followed,  this  same  Dermot 

1   National  Manuscripts  of  Ireland,  Xo.  LIX. 


CELTIC  FEUDALISM.  17 

exhibited  an  almost  incredible  barbarity  towards 
those  of  his  own  countrymen  to  whom  he  had  been 
opposed.  It  is  not  a  Protestant  but  a  Catholic 
historian  who  gives  us  the  most  terrible  account  of 
the  conduct  of  this  native  Irish  Chief.  We  are 
told  that  when  the  men  of  Ossary  had  been  borne 
to  the  ground  by  a  charge  of  the  English  cavalry, 
"the  fallen  were  immediately  despatched  by  the 
natives  under  the  banner  of  Dermot.  A  trophy  of 
two  hundred  heads  was  erected  at  the  feet  of  that 
Savage,  who  testified  his  joy  by  clapping  his  hands, 
leaping  in  the  air,  and  pouring  out  thanksgiving  to  the 
Almighty.  As  he  turned  over  the  heap  he  discovered 
the  head  of  a  former  enemy.  His  hatred  was  rekindled 
at  the  sight,  and  seizing  it  by  the  ears  in  a  paroxysm 
of  fury,  he  tore  off  the  nose  with  his  teeth."1  s 

In  the  most  interesting  and  instructive  Histori- 
cal Tracts  of  Sir  John  Davies,  who  was  Attorney- 
General  and  Speaker  of  the  Irish  House  of  Commons 
in  the  reign  of  James  i.,  we  find  conclusive  evidence 
of  the  barbarous  and  oppressive  nature  of  the  old 
Celtic  customs,  and  of  the  desire  of  the  people  to 
escape  from  them.  Whenever  they  had  the  know- 
ledge requisite  to  enable  them  to  understand  the 
difference,  "  they  were  humble  suitors  to  have  the 
benefit  and  protection  of  the  English  Laws."!  The 
most  valuable  clause  in  an  Irish  Charter  from  the 
Crown  was  always  that  which  promised  to  the 
holder  that  he  should  be  "ab  omni  servitute  Hiber- 
nic&  liber  et  quietus."  It  was  through  the  use  of 

1  Lingard,  ed.  1883,  vol.  ii.  p.  180.  2  Davies's  Tracts,  p.  89. 

VOL.  I.  B 


18  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

purely  native  and  old  Celtic  customs  that  the  great 
Anglo-Irish  Chiefs  exercised  their  greatest  oppres- 
sion. "  The  English  lords,"  says  Davies,  "  finding 
the  Irish  exactions  to  be  more  profitable  than  the 
English  rents  and  services,  and  loving  the  Irish 
tyranny,  which  was  tied  to  no  rules  of  law  or 
honour,  better  than  a  just  and  lawful  superiority, 
did  reject  and  cast  off  the  English  law  and  govern- 
ment, received  the  Irish  laws  and  customs,  took 
Irish  surnames,  etc.  etc."  Nor  does  Davies  speak 
without  a  definite  meaning  in  all  this  denunciation 
of  the  old  Celtic  customs.  He  had  too  vivid  a 
picture  before  him  of  the  results  of  these  customs 
to  be  deceived  by  words  which  have  a  popular 
sound,  and  by  usages  which  look  as  if  they  had  a 
popular  origin  and  effect.  He  saw  around  him 
the  inevitable  effects  of  so-called  Tribal  rights  in 
the  Ownership  of  the  soil.  He  knew  that  the 
individual  appropriation  of  land  was  the  first  step 
from  barbarism  to  civilisation,  from  widespread 
waste  to  cultivation  and  adequate  production.  He, 
therefore,  specially  denounces  those  usages  which 
made  the  improvement  of  land  difficult  or  impossible 
—usages  which  were  not  unsuitable  to  a  primitive 
and  semi-barbarous  condition,  but  were  also  specially 
suited  to  keep  men  down  to  that  level  and  to  pre- 
vent them  from  ever  emerging  from  it.  He  had 
before  him  their  ruinous  effects  :— 

"  Again,"  lie  says,  "  in  England,  and  all  well-ordered  common- 
wealths, men  have  certain  estates  in  their  lands  and  possessions, 
1  Davies'a  Tracts,  p.  116. 


CELTIC  FEUDALISM.  19 

and  their  inheritances  descend  from  father  to  son,  which  doth 
give  them  encouragement  to  plant  and  build  and  to  improve 
their  lands,  and  to  make  them  better  for  their  posterities. 
But  by  the  Irish  custom  of  Tanistry,  the  chieftains  of  every 
country,  and  the  chief  of  every  Sept,  had  no  longer  estate 
than  for  life  in  their  chiefries,  the  inheritance  whereof  did 
rest  in  no  man.  And  these  chiefries,  though  they  had 
some  portions  of  land  allotted  unto  them,  did  consist  chiefly  in 
'  cuttings '  and  '  cosheries,'  and  other  Irish  exactions  whereby 
they  did  spoil  and  impoverish  the  people  at  their  pleasure.  And 
when  their  chieftains  were  dead,  their  sons  or  next  heirs  did  not 
succeed  them,  but  their  Tanistres,  who  were  elective,  and  pur- 
chased their  election  by  strong  hand ;  and  by  the  Irish  custom 
of  gavelkind,  the  inferior  tenantries  were  partable  amongst  all 
the  males  of  the  Sept,  both  bastards  and  legitimate,  and  after 
partition  made,  if  any  one  of  the  Sept  had  died,  his  portion  was 
not  divided  amongst  his  sons,  but  the  chief  of  the  Sept  made  a 
new  partition  of  all  the  lands  belonging  to  that  Sept,  and  gave 
every  one  his  part  according  to  his  antiquity. 

"  These  two  Irish  customs  made  all  their  possessions  uncertain, 
being  shuffled  and  changed,  and  removed  so  often  from  one  to 
another,  by  new  elections  and  partitions,  which  uncertainty  of 
estates  hath  been  the  true  cause  of  such  desolation  and  barbarism 
in  this  land  as  the  like  was  never  seen  in  any  country  that 
professed  the  name  of  Christ ;  for,  though  the  Irish  be  a  nation 
of  great  antiquity,  and  wanted  neither  wit  nor  valour,  and 
though  they  had  received  the  Christian  faith  above  1200  years 
since ;  and  were  lovers  of  music,  poetry,  and  all  kind  of  learning ; 
and  possessed  a  land  abounding  with  all  things  necessary  for  the 
civil  life  of  man ;  yet  (which  is  strange  to  be  related)  they  never 
did  build  any  houses  of  brick  or  stone,  some  few  religious  houses 
excepted  before  the  reign  of  King  Henry  II.,  though  they  were 
lords  of  this  island  for  many  hundred  years  before  and  since  the 
conquest  attempted  by  the  English :  albeit,  when  they  saw  us 
build  castles  upon  their  borders,  they  have  only,  in  imitation  of 
us,  erected  some  few  piles  for  the  captains  of  the  country :  yet, 
I  dare  boldly  say,  that  never  any  particular  person,  either  before 
or  since,  did  build  any  stone  or  brick  house  for  his  private 
habitation,  but  such  as  have  lately  obtained  estates,  according 


20  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

to  the  course  of  the  law  of  England.  Neither  did  any  of  them 
in  all  this  time  plant  any  gardens  or  orchards,  inclose  or  improve 
their  lands,  live  together  in  settled  villages  or  towns  :  nor  make 
any  provision  for  posterity :  which  being  against  all  common 
sense  and  reason  must  be  needs  imputed  to  those  unreasonable 
customs  which  made  their  estates  so  uncertain  and  transitory  in 
their  possession. 

"  For  who  would  plant,  or  improve,  or  build  upon  that  land 
which  a  stranger  whom  he  knew  not  should  possess  after  his 
death  1  for  that  (as  Solomon  noteth)  is  one  of  the  strangest 
vanities  under  the  sun.  And  this  is  the  true  reason  why  Ulster 
and  all  the  Irish  counties  are  found  so  waste  and  desolate  at  this 
day,  and  so  would  they  continue  to  the  world's  end  if  those 
customs  were  not  abolished  by  the  law  of  England." 

But  the  most  destructive  custom  of  all  was 
that  which  passed  under  the  name  of  "  Coin  and 
Livery."  It  consisted  in  what  we  should  now  call 
military  requisitions — but  with  this  aggravation, 
that  as  feuds  and  fighting  were  chronic  and  per- 
petual, the  Chiefs  were  perpetually  quartering  them- 
selves and  their  retainers  upon  their  tenants.  This 
celebrated  phrase  "coin  and  livery"  bulks  largely 
in  the  enumeration  of  old  Irish  grievances,  as  if 
it  had  been  invented  by  the  English  invaders. 
But  it  was,  on  the  contrary,  a  genuine  old 
Irish  custom.  It  was  known  under  the  name 
of  "  Bonacht "  —  the  Chiefs  never  giving  to  their 
armed  retainers  any  other  pay  than  this  right  of 
living  at  free  quarters  upon  the  unhappy  tenants. 
Nor  was  this  all : — among  the  Celts  of  Ireland  it 
may  be  said  with  truth  that  Peace  had  its  exactions 
not  less  devastating  than  those  of  War.  When 
"  coin  and  livery"  were  not  available,  other  genuine 


CELTIC  FEUDALISM.  21 

native  customs  gave  to  the  Chieftains  the  most 
ample  compensation.  First  there  was  "  Coshering/' 
which  were  visitations  arid  progresses  made  by  the 
Lord  and  his  followers  among  his  tenants,  eating 
them  out  of  house  and  home.  Next,  there  were 
"  Sessings  of  the  Kerne,"  or  support  for  his  horses, 
dogs,  and  attendants.  Lastly,  there  were  "Tallages" 
or  "  Spendings," — exactions  not  capable  of  defini- 
tion— in  all  which  modes  the  Celtic  Chiefs  were 
absolute  Tyrants,  and  the  tenants  were  slaves  and 
villeins.1 

One  other  curious  illustration  may  be  given  of 
the  real  relation  between  ancient  Celtic  customs 
and  the  more  civilised  Feudalism  of  the  Anglo- 
Normans.  We  have  seen  that  more  than  120  years 
before  the  English  invasion  of  Ireland  the  Celtic 
Kings  and  Chiefs  had  begun  to  give  formal  grants 
of  land  to  the  Monastic  Bodies,  binding  on  them- 
selves and  their  successors.  The  earliest  specimens 
extant  are  written  in  the  Celtic  tongue,  and  are 
drawn  upon  the  same  model  as  the  Latin  Charters 
of  a  corresponding  date  in  England.  But  it  is  per- 
haps still  more  remarkable  that  there  are  also  extant 
two  regular  Charters  in  the  Latin  language  granted 
by  native  Irish  Kings  just  before  the  English 
invasion.  As  usual,  they  are  grants  of  land  to 
Churchmen  for  ecclesiastical  foundations.  One  of 
them  indicates  very  clearly  the  conditions  of  society, 
and  the  nature  of  Celtic  customs  against  which  it 
was  the  object  of  those  early  Instruments  to  pro- 

1  Davies,  p.  134-5. 


22  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

mise  immunity  and  protection.  It  is  from  lawless 
violence  and  rapine — from  fire,  from  plunder  and 
from  theft — that  Dermod,  King  of  the  Leinstermen, 
engages  to  secure  the  Abbot  of  Ossory  and  his  suc- 
cessors in  the  quiet  possession  of  the  lands  and 
granges  of  the  new  Monastery  of  Duisk.  The  other 
of  the  two  Latin  Charters  given  at  the  same  period 
by  another  Irish  King  to  another  Monastery  is  only 
remarkable  in  this  respect,  that  we  have  in  it  the 
full  adoption  of  the  regular  feudal  description  and 
catalogue  of  the  things  possessed  by  virtue  of 
Ownership  in  land.  To  this  I  shall  advert  more 
particularly  again — mentioning  it  here  only  in  con- 
nection with  the  great  subject  of  the  passage  and 
transition  from  semi-barbarous  customs,  and  un- 
written usages,  into  legally  defined  covenants  and 
obligations.  This  transition  is  shown  with  striking 
clearness  by  the  very  first  Charters  granted  by  the 
Anglo-Norman  invaders  under  Henry  II.  only  one 
year  later  than  the  last-mentioned  Charter  of  an 
Irish  King.  One  of  these  was  granted  by  Earl 
Fitz  Giselbert,  the  famous  Strongbow.  In  the  first 
place,  this  new  Charter  was  given  to  a  layman. 
This  at  once  breaks  the  absolute  monopoly  of  the 
Church  in  those  "  Freedoms  "  and  immunities  which 
piety  or  superstition  had  hitherto  confined  to 
ecclesiastics.  In  the  second  place,  we  see  here  the 
great  step  made  of  a  strict  specification  and  limita- 
tion upon  the  services  which  the  grantee  (or  vassal) 
of  the  land  could  be  called  upon  to  render,  and  an 
absolute  guarantee  given  against  the  oppressive 


CELTIC  FEUDALISM.  23 

exactions  of  Celtic  customs.  Five  Knights'  service 
was  the  amount  required  under  this  Charter,  and  for 
this  amount  the  holder  of  the  lands  so  granted  was 
specially  declared  to  be  free  from  "  all  the  evil 
customs  "  of  the  Irish.1 

If  now  we  turn  from  the  Celts  of  Ireland  to  the 
Celts  of  Scotland,  the  Picts  and  Scots,  we  find 
evidences,  as  abundant  as  a  much  more  obscure 
history  can  afford,  of  a  social  condition  which  began 
in  substantially  the  same  system.  We  ought  to 
know  more  about  it  than  we  do.  We  have  one 
authentic  work  of  the  end  of  the  Seventh  Cen- 
tury, written  by  a  man  who  could  have  told  us 
much,  if  he  had  had  it  in  his  mind  to  do  so.  This 
is  the  same  Abbot  Adamnan,  whose  interference 
on  behalf  of  women  in  Ireland  has  been  before  men- 
tioned, and  who  is  the  author  of  the  Life  of  Columba. 
For  a  good  deal  more  than  a  hundred  years  he  and 
his  predecessors  had  been  in  constant  and  familiar 
communication  with  the  Pictish  Celts.  If  any 
abuses  had  prevailed  among  them  so  gross  as  those 
which  had  arisen  in  Ireland,  we  may,  perhaps, 
assume  that  he  would  have  made  some  allusion  to 
them.  But  the  literature  of  that  age  and  race, 
though  undoubtedly  authentic,  is  extremely  meagre. 
The  truth  is  that  the  high  but  very  special  civilisa- 
tion of  the  early  Scoto-Irish  Celts  is  one  of  the  most 
singular  in  the  history  of  the  world.  It  shines  across 
the  ages  with  a  pure  and  brilliant  light.  But  it 

1  National  Manuscripts  of  Ireland,  Part  ii.  No.   LXIII.      "  Absque 
omnibus  mails  consuetudinibus." 


24  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

shines  only  from,  and  upon,  the  Altar.  It  spent 
itself  wholly  in  the  great  work  of  spreading  Chris- 
tianity among  the  Heathen.  This  indeed  is  glory 
enough  for  any  Church.  But  it  did  not  indicate  in 
the  races  among  whom  it  arose,  nor  did  it  impart  to 
them,  any  aptitude  for  political  institutions.  Beyond 
the  sphere  of  its  spiritual  operations  it  has  left  no 
memorials  of  itself,  except  some  fine  work  in  gold 
and  jewels  lavished  upon  crosiers,  upon  the  covering 
of  Psalters,  upon  missals,  upon  shrines,  and  upon 
other  insignia  of  the  Church.  It  gave  rise  also  to  a 
peculiar  style  of  ornament  for  parchment  pages,  for 
crosses,  and  for  tombstones,  which  lasted  for  many 
centuries,  and  which  was  undoubtedly  founded  on 
the  primitive  idea  of  the  many  articles  which  in 
early  ages  had  been  made  of  wattles.  But  with  all 
its  religious  devotion,  and  all  its  efflorescence  in  Art, 
the  Clergy,  who  were  its  apostles  and  prophets,  seem 
to  have  taken  little  heed  of  the  social  condition  or 
of  the  secular  affairs  of  the  people  among  whom 
they  laboured.  There  are  few  things  in  all  litera- 
ture more  curious  or  more  provoking  than  the 
contrast  between  the  minute  information  which 
Adamnan  gives  to  us  respecting  many  details  of 
Columba's  life,  and  the  absolute  silence  of  the 
biographer  on  everything  we  most  desire  to  know 
respecting  the  Pictish  people  in  the  west  and  north 
of  Scotland  during  the  Sixth  and  Seventh  Centuries. 
It  is  like  the  contrast  between  the  narrow  field  of  a 
powerful  microscopic  lens  and  the  surfaces  which  are 
close  beside  it,  but  on  which  nothing  is  distinguish- 


CELTIC  FEUDALISM.  25 

able.  On  the  one  hand  we  seem  almost  to  hear 
Columba's  voice,  and  to  see  his  gestures.  On  the 
other  hand,  we  hardly  see  or  hear  anything  of  those 
to  whom  he  spoke  the  Word,  and  to  whom  he  sang 
the  Psalms,  and  over  whom  he  signed  the  sign  of 
the  Cross. 

But  although  we  are  told  little  at  this  particular 
time,  yet  from  events  which  followed  at  no  distant 
date,  and  from  the  general  course  of  history,  we 
know  pretty  nearly  how  matters  really  stood. 

All  the  races  which  occupied  Europe  before  the 
Roman  conquests,  had  this  in  common — that  they 
had  not  then  emerged  from  the  rude  Tribal  organisa- 
tion through  which,  probably,  the  whole  human  race 
has  passed.  During  long  centuries  the  Roman  people 
itself  had  travelled  far  from  the  condition  of  being 
one  only  of  the  Tribes  of  Latium.  Yet  this  they  had 
been  once, — and  nothing  more.  From  their  own  little 
settlement  on  the  Tiber  they  had  seen  and  hated 
the  rival  walls  of  Alba  Longa.  But  now  this  small 
Tribe  had  grown  into  an  Empire  which  stretched 
from  the  Euphrates  to  the  Clyde.  Great  in  Arms, 
great  in  Arts,  but  greatest  of  all  in  Law,  the  Romans 
had  left  little  trace  in  their  stately  jurisprudence  of 
the  remote  and  archaic  time  when  it  was  tolerated 
that  men  should  look  for  the  security  of  their  pos- 
sessions to  any  other  protection  than  that  of  an 
Imperial  power  enforcing  and  sustaining  an  Imperial 
code.  In  all  these  respects  the  invasion  of  the 
Northern  Tribes  was  indeed  what  the  Romans 
called  it,  an  invasion  of  Barbarians.  Among  them 


26  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

there  was  no  central  authority,  no  Common  Law 
built  upon  scientific  reasoning  and  accurate  defini- 
tions of  the  rights  and  duties  of  mankind.  There 
was  nothing  but  customs  and  traditions  in  a  state 
of  perpetual  flux,  and  therefore  always  at  the 
mercy  of  those  who  led  and  ruled. 

The  Celts  were  in  all  these  customs  the  least 
developed  and  the  least  advanced.  The  Chiefs 
seem  always  to  have  had,  from  the  earliest  times, 
a  much  more  arbitrary  power  than  among  the 
Teutonic  Tribes,  as  described  by  Tacitus ;  and,  as 
in  the  earliest  authentic  accounts  we  have  of  the 
Highlands,  the  Tribal  stage  had  long  passed  into  the 
stage  of  Clanship,  we  find  fully  developed  all  those 
powers  of  adoption,  of  leadership,  and  of  hereditary 
authority  which  constituted  practically  unlimited 
rule. 

We  must  beware,  therefore,  of  a  mistake  which 
is  so  common  as  to  be  almost  universal — and  that 
is  the  mistake  of  confounding  the  Tribe  with  the 
Clan.  They  were  wholly  distinct  in  their  nature 
and  widely  separated  in  point  of  time.  The  Tribal 
stage  among  the  Picts  and  Scots  is,  properly  speak- 
ing, prehistoric.  We  know  of  it  only  from  the 
very  superficial  information,  and  the  passing  allusions 
of  a  few  Greek  and  Roman  writers.  Rome,  as  is 
well  known,  came  into  sharp  military  conflict  with 
the  Celtic  Tribes,  and  the  few  facts  which  her  his- 
torians mention  do  much  to  raise  and  very  little  to 
satisfy  our  curiosity.  That  a  people  so  far  civilised 
as  to  use  the  beautiful  leaf-shaped  swords  of  bronze, 


CELTIC  FEUDALISM.  27 

which  are  still  often  found  as  sharp  and  as  well 
moulded  as  the  day  they  were  cast — and  who 
could  meet  the  Roman  Legions  with  armed 
chariots — should  in  other  respects  have  been  so 
barbarous  as  they  are  described,  is  indeed  not  a 
little  perplexing.  The  holding  of  land  in  common 
is  mentioned  by  Latin  authors  along  with  the  same 
practice  in  respect  to  wives.1  If  this  be  correct  the 
Picts  and  Scots  must  have  differed  widely  from  the 
Teutonic  Tribes.  But  the  truth  is,  that  no  great 
reliance  can  be  placed  on  these  accounts.  The  most 
careful  and  laborious  diggers  in  the  mine  of  Celtic 
legend  and  tradition  are  obliged  to  confess  that  all 
the  details  connected  with  the  Tribal  stage  of  Celtic 
society  are  beyond  the  reach  of  history.  What  we 
do  know  with  certainty  is  that  during  some  dark 
centuries,  which  are  destitute  of  contemporary 
records,  the  Tribal  system  had  been  developed  into 
the  very  different  organisation  of  the  Clan ;  and 
that  the  customs  and  usages  of  the  Clan  in  respect 
to  the  tenure  of  land  were  the  customs  and 
usages  of  Feudalism  in  the  rudest  and  most  violent 
form. 

We  know  this  from  the  long  survival  within 
the  Celtic  area  in  Scotland  of  customary  exactions 
the  same  in  origin  and  the  same  in  character  with 
those  which,  as  we  have  seen,  were  the  ruin  of  Ire- 
land. We  know  it  by  the  fact  that  after  the  union 
of  the  Picts  and  Scots  under  one  Crown  in  the 
middle  of  the  Ninth  Century,  it  is  specially  recorded 

1  Skene,  vol.  iii.  p.  210. 


SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

of  a  certain  King  Girig,  who  reigned  from  878  to 
889,  that  he  relieved  the  lands  held  by  the  newly 
constituted  Scottish  Church  from  the  servitudes 
under  which  they  were  held  "  according  to  the  law 
and  customs  of  the  Picts."  l  We  know  it.  too,  by 
the  fact  that  these  exactions  were  only  gradually 
extinguished  on  other  lands  by  that  one  great 
remedy  which,  as  Sir  J.  Davies  complained,  was  so 
grudgingly  given  to.  or  so  unfortunately  withheld 
from,  Ireland,  namely,  the  substitution  of  the  higher 
and  purified  Feudalism  of  the  Anglo-Norman  Law. 
It  will,  perhaps,  surprise  many  to  be  brought  face 
to  face  with  the  historical  evidence  that  Celtic 
Scotland  had  the  narrowest  escape  from  the  same 
development  of  corruption  which  proved  so  fatal 
to  the  prosperity  of  Celtic  Ireland.  But  that 
evidence  is  abundant  and  conclusive.  All  those 
Irish  exactions  with  barbarous  titles  which  are 
familiar  in  the  dreary  history  of  Irish  grievances, 
appear  in  counterpart  in  the  customs  of  the  Scoto- 
Celts.  The  names  by  which  they  are  designated 
have  a  close  family  resemblance.  The  occupants  of 
land  under  the  Chiefs  were  subject  to  at  least  four 
great  burdens,  which  were  called  respectively  Cain, 
Conveth,  Feacht,  and  Sluaged.  The  two  first  were 
not  necessarily  oppressive,  for  the  one  great  reason 
that  they  were  at  least  by  way  of  being  fixed  and 
definite  portions  of  the  produce.  But  the  two  last 
Avere  in  their  nature  purely  arbitrary,  answering  to 
the  opprobrious  "Coin  and  Livery"  of  the  Irish. 

1   Celtic  Scotland,  vol.  ii.  p.  320. 


CELTIC  FEUDALISM.  29 

They  put  it  in  the  power  of  the  Chief  himself  and  all 
his  avowed  followers  to  live  upon  the  tenants  at  his 
pleasure. 

It  is  very  significant  that  our  knowledge  of  these 
old  Celtic  exactions  under  the  Clan  system  in  Scot- 
land is  derived  from  those  Latin  Charters  of  Anglo- 
Saxon  origin,  which  are  often  popularly  represented 
as  having  suppressed  the  ancient  liberties  of  the 
Celts,  but  which  in  reality,  so  far  from  imposing 
new  exactions,  were  the  great  instruments  whereby 
old  exactions  came  gradually  to  be  abolished  or  re- 
formed. The  Clergy,  as  usual,  continued  to  seek  and 
to  obtain  the  limitation  and  regulation  of  arbitrary 
exactions,  and  it  is  from  the  grants  given  to  them 
that  we  learn  how  heavily  and  how  universally  they 
were  levied  in  the  Highlands  upon  all  lands  which 
were  not  held  "  feudally" — that  is  to  say,  not  under 
the  new  Latin  and  Anglo-Norman  type  of  Charter. 
In  the  two  great  ancient  Provinces  of  Argyll  and 
Moray  we  have  examples  of  such  special  exemptions 
given  in  the  13th  century.  The  Celtic  exactions  of 
"  Sluaged  "  and  "  Feacht,"  and  others,  which  seem  to 
have  been  nameless,  are  specified  in  Latin  by  such 
words  as  these :  "ab  exercitu  et  expeditione,  et  opera- 
tione  et  auxilio,  et  ab  omnibus  consuetudinibus,  et 
omni  servicio  et  exactione  "-  —words  which  by  their 
very  variety  and  sweep  indicate  clearly  the  number 
and  the  unfixed  character  and  extent  of  the  "  exac- 
tions "  to  which  the  people  were  exposed  tinder  the 
native  Feudalism  of  the  Celts.1  In  respect  to  some 

1  Celtic  Scotland,  vol.  iii.  pp.  228-9. 


30  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

of  these  exactions  we  have  specific  information  of 
the  quantities  of  produce  which  continued  to  be,  or 
came  to  be  levied  under  them.  One  of  these  was 
called  "Conveth,"  which  answers  to  the  Irish 
"  Coigny,"  and  represented  that  most  ancient  of 
"Tribal  rights,"  namely,  "the  original  right  which 
the  leaders  in  the  Tribe  had  to  be  supported  by  their 
followers."1  Locally,  in  the  Western  Highlands, 
this  particular  exaction  acquired  the  name  of  "  Cud 
diche,"  and  it  seems  to  have  often  mounted  up  to 
quantities  of  produce  far  greater  than  any  regular 
rent.  Three  hundred  years  and  more  after  we  first 
hear  of  them  from  the  exempting  Feudal  Charters 
of  the  13th  century,  we  find  them  prevailing  in 
Argyllshire  and  in  the  Western  Isles,  and  we  find 
them  amounting  to  such  heavy  payments  as  1 8  score 
of  chalders  of  grain,  58  score  of  cows,  32  score  of 
sheep,  and  a  great  quantity  of  fish,  poultry,  and 
cloth  plaiding, — all  by  way  of  feasting  their  master 
when  he  pleased  to  visit  the  country.  In  Uist  each 
"  merk-land  "  paid  20  bolls  of  grain ;  and  in  Mull  each 
merk-land  paid  13  bolls  of  grain  and  meal,  20  stones 
of  cheese,  4  stones  of  butter,  4  oxen,  8  sheep,  2  merks 
of  silver,  and  2  dozen  of  poultry,  all  as  "  Cuddiche  " 
whenever  their  master  comes  to  them.  And  this 
was  close  to  the  end  of  the  16th  century — in  1595. 
The  Monks  of  lona  do  not  seem  to  have  been 
much  impressed  by  the  advantages  of  these  relics 
of  the  Old  Celtic  Tribal  system,  and  like  other 
wise  men  they  took  refuge  in  the  more  lenient, 

1  Celtic  Scotland,  vol.  iii.  p.  232. 


CELTIC  FEUDALISM.  31 

and  less  lawless  Feudalism  represented  by  the 
Latin  Charters.  And  so  in  1580  they  secured  from 
the  Chief  near  whom  they  lived,  M'Lean  of  Dowart, 
a  grant  of  their  lands  under  the  promise  of  being 
protected  from  these  genuine  old  Celtic  liberties  the 
true  character  of  which  is  very  frankly  described. 
The  Chief  was  to  "  suffer  no  manner  of  person  or 
persons  to  oppress  the  said  lands  of  lona  and  Ross, 
or  tenants  thereof,  or  trouble  or  molest  them  in  any 
sort  with  either  '  stenting '  or  conyow,  gerig  service 
or  any  manner  of  exaction." l  In  Athol  some  of  these 
old  Celtic  exactions  were  levied  so  late  as  1719-20. 
These  instances,  and  numberless  others  which 
might  be  given  from  similar  records,  show,  as  Mr. 
Skene  observes,  "  that  these  Celtic  burdens  on  land 
prevailed  over  the  whole  country  north  of  the  Firths 
(of  Clyde  and  Forth)  on  all  lands  which  had  not 
become  the  subject  of  feudal  grants."2  The  one 
essential  feature  which  distinguished  them  from 
Rent  properly  so  called,  or  from  the  legal  forms  of 
Feu-duty,  was  the  uncertainty  of  their  amount,  and 
the  consequent  liability  to  unlimited  extension  at 
the  hands  of  those  who  were  practically  possessed  of 
supreme  power.3 

But  in  Scotland  all  the  later  developments  of 
time  were  in  the  direction  of  modification,  of  ame- 
lioration, of  wise  and  temperate  legislation,  in  direct 
proportion  as  the  Provinces  became  united  under 
one  Crown,  and  subject  to  one  Parliament.  In  this 

1  Celtic  Scotland,  vol.  iii.  p.  233.  2  Ibid.  p.  230. 

3  Ireland  in  tlie  \1th  Century,  by  M.  Dickson,  Introd.  pp.  4-5. 


SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

civilising  process,  beyond  all  question,  the  introduc- 
tion and  establishment  of  the  Feudal  System,  as 
developed  among  the  Teutonic  races,  played  a  most 
important  part.  Historians  speak  of  the  silence,  of 
the  comparative  rapidity,  and  of  the  completeness  of 
this  great  legal  conquest — as  if  it  were  a  profound 
mystery.  But,  in  truth,  there  is  no  mystery  at  all. 
The  Feudal  System  spread  because  it  was  the  best 
possible  embodiment  and  expression  of  ideas  which 
had  been  long  familiar,  and  of  facts  which  had  long 
come  to  be  of  universal  prevalence.  The  ruinous 
customs  and  usages  which  we  have  seen  established 
among  the  Celts  were  feudal  in  their  root,  in  their 
origin,  and  in  their  essence.  But  they  represented 
Feudalism  in  its  most  barbarous  form — unrestrained 
by  any  sense  of  justice  or  of  law.  Cognate  ideas,— 
analogous  rights  and  duties, — were  embodied  in 
the  Anglo-Norman  Feudal  System ;  but  they  were 
moulded  and  governed  by  more  civilised  conceptions 
of  an  orderly  and  settled  jurisprudence.  All  ranks 
and  conditions  of  men  found  their  personal  interest 
in  accepting  that  system — because  it  gave  legal 
definition  to  customs  which  had  previously  been 
undefined,  and  held  out  to  a  growing  civilisation 
that  which  is  its  first  condition,  and  which  has 
always  an  irresistible  attraction  to  the  minds  of 
men — a  logical  and  reasonable  system  of  defined 
rights  and  duties,  under  which  all  classes  knew 
what  they  might  and  what  they  might  not  do. 
This  was  the  real  strength  of  the  Feudal  System, 
and  this  strength  it  drew  from  the  silent  but  in- 


CELTIC  FEUDALISM.  33 

superable  influence  of  that  great  agent  of  civilisa- 
tion— the  Roman  Law.  Even  in  Ireland,  as  we 
have  seen,  the  power  of  that  Law  had  begun  to 
work  through  the  ubiquitous  agency  of  the  Latin 
Church.  In  Scotland  the  perfected  combination  of 
Imperial  Law  with  Teutonic  Custom  was  greatly 
helped  by  the  actual  spread  of  a  kindred  population 
over  large  portions  of  the  country — by  the  mar- 
riage of  a  Saxon  Princess  to  Malcolm  Canmore,  a 
contemporary  of  the  Conqueror — and  by  the  sub- 
sequent close  alliances  of  the  Celtic  Chiefs  with  the 
Norman  and  Anglo-Saxon  aristocracy. 

These  were  indeed  adventitious  advantages,  and 
causes  of  diffusion,  which  were  of  inestimable  value  ; 
but  nothing  marks  more  strikingly  the  natural 
adaptation  and  fittingness  of  the  Feudal  System 
into  pre-existing  and  purely  native  conditions,  than 
the  fact  that  the  old  Celtic  titles,  derived  originally 
from  the  language  of  Tribes  and  Clans,  became 
universally  translated,  without  any  sense  of  break 
or  change,  into  the  titles  which  were  known  and 
established  over  the  rest  of  feudal  Europe.  The 
Celtic  "Mormaers"  took  their  natural  place  as 
Saxon  "Earls"  holding  under  the  King;  whilst 
under  the  Earls  again  the  Celtic  "  Toisechs  "  took 
their  corresponding  place  as  Chiefs  of  jDlans.  Thus, 
in  the  organisation  of  the  Celtic  parts  of  Scotland, 
"  we  find/'  as  Mr.  Skene  has  said,  "  a  gradation 
of  persons  possessing  territorial  rights  within  them, 
consisting  of  the  Ardri,  or  supreme  King,  the  Mor- 
maer,  and  the  Toisech,  and  the  latter  of  these  as 

VOL.  i.  c 


34  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

not  only  possessing  rights  in  connection  with  the 
land,  but  also  standing  in  a  relation  to  the  Tribe 
or  Clan  which  occupied  them,  as  leader."  All 
this  was  essentially  allied  to  the  Feudal  System, 
and  so  when  that  System  in  its  higher  form  came 
into  contact  with  the  vaguer,  less  definite,  but 
fundamentally  analogous  customs  which  had  arisen 
out  of  the  necessities  of  life  among  the  Celtic  as 
well  as  among  the  Teutonic  Tribes,  it  naturally 
absorbed  these  customs  into  itself,  and  gave  to 
them  a  legal  and  well-regulated  definition. 

Among  the  Celtic  population,  indeed,  in  exact 
proportion  as  the  remoteness  of  the  country  withheld 
them  longer  from  the  benefits  of  this  System,  we 
find  their  own  more  ancient  usages  tending  not  to 
greater  freedom  among  the  mass  of  the  people,  but 
to  more  absolute  and  arbitrary  power  in  the  hands 
of  those  who  were  their  Chiefs  and  rulers.  Accord- 
ingly, the  civilisation  of  Scotland  began  in  the 
Lowlands,  where  the  Feudal  System  was  earliest 
established,  and  along  the  whole  eastern  districts 
which  were  outside  the  Highland  barrier.  Just  in 
proportion  as  they  were  outside  that  barrier  of  rough 
hills  and  mountains,  they  were  inside  the  advancing 
line  of  mixed  races,  and  of  laws  becoming  more  just 
and  settled — through  all  those  processes  of  natural 
selection  which  mark  the  history  of  an  advancing 
people. 

All  historians  of  Scotland  are  agreed  that  the 
two  centuries  which  elapsed  between  Malcolm  Can- 

1  Celtic  Scotland,  vol.  iii.  pp.  57-8. 


CELTIC  FEUDALISM.  35 

more,  with  his  wife  Queen  Margaret,  and  the  death 
of  Alexander  in.  in  1286,  constitute  the  epoch 
during  which  Scotland  made  herself  a  Nation,  and 
advanced  most  rapidly  in  civilisation  and  in  wealth. 
During  the  whole  of  it  the  direct  descendants  of 
that  illustrious  union  of  the  Celt  and  Saxon  con- 
tinued to  occupy  the  throne,  and  during  the  whole 
of  it  there  was  constant  progress  made  in  that  amal- 
gamation of  rages  to  which  our  Island  owes  so  much. 
I  have  spoken  of  the  line  of  mountains — the  Gram- 
pian Range — which  rises  like  a  wall  from  the  low 
grounds  of  the  Valley  of  Strathmore,  and  from  the 
Firth  of  Clyde — as  the  Highland  Barrier.  But  it 
must  not  be  supposed  that  it  remained  long  a  barrier 
after  the  union  of  the  Picts  and  Scots,  still  less  after 
the  Saxon  and  Norman  stream  set  in  under  Queen 
Margaret  and  her  descendants.  The  broad  belt  of 
country,  comparatively  low,  which  flanks  that  line  of 
mountains  to  the  east,  and  stretches  from  the  Forth 
and  the  Tay  round  the  whole  coast  of  Scotland  to  the 
Beauly  Firth,  was  gradually  but  surely  occupied  by 
an  Anglo-Saxon  population,  and  one  of  the  Kings  of 
this  period — Malcolm  the  Fourth — drove  out  the 
Celts  from  the  rich  province  of  Moray,  and  resettled 
it  with  the  mixed  races  of  the  South.1, 

From  many  points  of  all  this  low  country,  the 
central  Highlands  were  accessible  along  the  banks 
of  rivers  rising  on  the  hills  of  watershed,  between 
the  west  and  east.  The  Teith,  the  Earn,  the  Tay, 
the  Dee,  the  Deveron,  the  Don,  the  Findhorn,  and 

1  Skene's  Celtic  Scotland,  vol.  iii.  p.  27. 


36  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

the  Spey,  were  all  more  or  less  easy  lines  of  access 
to  the  strongholds  of  the  Celt,  whilst  the  great 
diagonal  Valley  which  cuts  right  across  Scotland 
from  Inverness  to  the  Isle  of  Mull, — Glenmore— 
constituted  another  line  of  penetration.  On  the 
southern  flank,  the  beautiful  Province,  and  ancient 
Earldom,  of  the  Lennox,  was  open  from  the  branches 
of  the  Firth  of  Clyde,  and  from  the  fertile  Strath 
through  which  Loch  Lomond  sends  its  waters  to 
the  tidal  estuary  at  Dumbarton.  It  is  this  gently 
flowing  stream  the  Leven,  in  Celtic  tongue  "  Leven- 
achs,"  from  which  the  whole  district  takes  its  name. 
Embracing  the  whole  of  the  present  county  of 
Dumbarton  and  a  great  part  of  Stirling,  the  country 
of  the  Leven, — the  Lennox — remained,  almost  up 
to  our  own  day,  half  Lowland  and  half  Highland 
—half  Saxon,  and  half  almost  purely  Celtic. 

Under  such  a  combination  of  geographical  and 
of  political  conditions,  it  is  not  surprising  to  find 
that  the  fusion  of  races  and  the  assimilation  of 
institutions  had  made  immense  progress,  when  the 
light  of  history  first  becomes  clear  in  the  Eleventh 
Century.  The  way  had  been  prepared  beforehand, 
not  only  for  the  Saxon  or  the  Norman  Knight,  but 
for  any  Chief  or  any  leader  of  kindred  blood  who 
could  combine  courage  with  knowledge  and  with 
conduct  in  the  pursuit  of  arms.  It  must  always  be 
remembered  that  the  Celts  had  been  successfully 
invaded  by  the  Teutonic  races  from  the  North  and 
West,  long  before  they  came  to  be  invaded  by  the 
Saxons  and  Normans  from  the  South  and  East. 


CELTIC  FEUDALISM.  37 

For  several  hundred  years,  after  the  union  of  the 
Picts  and  Scots,  in  the  middle  of  the  Ninth  Cen- 
tury, a  very  large  part  of  the  country,  what  we  now 
call  the  Highlands  of  Scotland,  was  ruled  by  an 
alien  Gothic  race.1  Over  the  whole  of  the  Hebri- 
dean  Islands,  and  over  the  whole  of  the  Northern 
Highlands  down  to  the  chain  of  Lakes  now  occupied 
by  the  Caledonian  Canal,  petty  Kingdoms  were 
established  under  Chieftains  who  were  Norsemen. 
The  native  Celts  became  their  Clansmen  rather 
than  their  subjects — or  their  subjects  only  in  the 
same  sense  and  measure  as  all  Clansmen  had  be- 
come subject  to  their  Chiefs.  The  Celts  must  have 
clustered  round  the  standard  of  those  hardy  war- 
riors, just  as  they  had  before  clustered  under 
leaders  of  their  own.  Of  course  this  Norse 
dominion  had  not  been  achieved  without  endless 
fighting.  But  it  was  achieved  without  any  exter- 
mination, and  apparently  without  even  much  dis- 
placement of  the  native  Celtic  population.  The 
Celts  were  enlisted  rather  than  subdued,  and  incor- 
porated in  the  rough  Feudalism  of  a  great  military 
race. 

There  was  constant  intermarriage  between  the 
Teutonic  and  the  Celtic  Chiefs,  so  much  so,  that 
it  is  often  difficult  to  determine  clearly  to  which  of 
the  two  bloods  the  most  celebrated  men  belonged. 
There  is  no  name  more  familiar  to  our  ears,  in 
the  history  of  that  dark  time,  than  the  name  of 

1  Burton's  History  of  Scotland,   vol.    i.  chap,  ix.,  and  Skene'a  Celtic 
Scotland,  vol.  iii.  chap.  i. 


387288 


38  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

Somerled,  and  none  more  associated  with  our  very 
idea  of  the    northern   race,    whose    dominion   was 
founded  on  the  Galley  and  the  Sea,  and  from  whose 
language  the   sound  of  that  name  unquestionably 
comes.1      Yet    it    seems   now  certain    that  on  the 
father's  side,  at  least,  his  origin  was  Celtic,  whilst 
his  Norwegian  name  probably  indicates  some  near 
family  relationship  with  those  whose  rule  he  fought 
against  and,  at  least,  locally  overthrew.     But  that  a 
Chief  who  championed  the  cause  of  the  old  native 
population    of  Argyll   and   its    Isles   should    have 
borne  this  Norwegian  name,  although  in  the  male 
line  his  parentage  was  Celtic,  is  a  sufficient  indica- 
tion  how   purely   personal  were  the  qualifications 
which     then     determined     leadership ;     and     how 
thoroughly    mixed    in     origin     the    great    leading 
families  had  become.     Whether  the  population  had 
become  equally  mixed,  is  very  doubtful.     Probably 
they  had  not,  because,  except  in  Caithness,  and  in 
some  other  parts  of  the  lower  margins  of  land  most 
accessible  to  the  sea,  it  does  not  appear  that  the 
Norsemen  settled  in  large  numbers  upon  the  country 
as  colonists.     But  it  is  clear  that  the  native  Celtic 
population  had  come  to  serve  under  whatever  rulers 
were  able  to  establish  their  authority,  and  had  been 
absorbed   into   the  military  system   by  which  that 
authority  was  maintained.     This  system  was  purely 
feudal  in  its  root  and  essence, — consisting  in  sub- 
ordination and  fidelity  to  Chiefs,  on  whose  capacity 
the  followers  depended,  and  to  whom  they  in  turn 

1  Skene's  Celtic  Scuffainf,  vol.  iii.  pp.  32-3. 


CELTIC  FEUDALISM.  39 

contributed  only  that  which  Muscle  must  ever  yield 
to  Mind. 

When  we  consider  that  these  contests  with  the 
Norsemen,  and  between  rival  Chieftains  who  were 
half  Norse  and  half  Celtic,  and  between  Clans 
formed  by  the  followers  of  these  Chiefs,  but  who 
were  predominantly  of  one  race, — went  on  in  the 
Highlands  and  Islands  for  the  long  period  of  more 
than  400  years — that  is  to  say,  from  about  860 
to  1266 — when  we  consider  further  that  at  one 
time, — about  the  middle  of  the  Eleventh  Century 
— the  battle  rolled  through  all  the  mountains  to 
the  eastern  shores,  and  southwards  as  far  as  the 
valley  of  the  Tay,  so  that  the  whole  of  Scotland 
north  of  that  river  was  for  a  season  under  the 
Norse  power1 — we  can  imagine  how  thoroughly  and 
minutely  the  individuality  of  Clans  must  have 
been  broken  up,  and  every  fragment  of  the  Archaic 
Tribal  organisation  must  have  been  ground  to 
powder.  The  dream  of  any  simple  patriarchal  system 
in  the  Highlands,  within  historic  memory,  bound 
together  in  peaceful  Village  Communities  like  those 
of  the  mild  Hindu,  is  a  dream  indeed.  It  is  true 
that  the  people  lived  in  villages,  partly  from  im 
memorial  habit,  but  still  more  for  the  excellent 
reason  that  men  must  cluster  together  when  they 
live  in  perpetual  danger.  It.  is  true  that  they  pas- 
tured great  extents  of  land  promiscuously,  because 
the  scientific  agriculture  which  requires  inclosures 
and  the  application  of  individual  skill,  was  entirely 

1  Skene's  Celtic  Scotland,  vol.  iii.  p.  31. 


40  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

unknown,  whether  as  regards  the  production  of 
corn,  or  as  regards  the  breeding  of  animals  by 
careful  and  artificial  selection.  It  is  true  also  that 
in  name  at  least  the  hereditary  principle  lingered 
on,  for  this  was  common  to  the  Saxon  and  to  the 
Norman  as  well  as  to  the  Celt,  and  was  provided  for 
in  the  better  and  stronger  form  by  the  higher 
Feudalism  of  those  races  than  by  the  ruder 
Feudalism  of  the  Clans.  But  the  organisation  of 
society  throughout  the  Highlands  had  become  mili- 
tary from  the  apex  to  the  base,  and  all  the  power 
of  Mind,  and  of  supreme  Authority,  had  been 
concentrated  in  Chiefs,  who  represented  a  mixture 
of  races,  and  who  brought  in  the  elements  of  a 
higher  civilisation.  The  tie  of  common  blood  had 
through  the  fierce  work  of  centuries  been  universally 
superseded  by  the  tie  of  fidelity  to  men  who  could 
lead  others  to  victory,  and  who  could  protect  them 
during  intervals  of  peace  in  the  complete  devolu- 
tion of  all  labour  upon  their  women,  in  the  enjoy- 
ment of  their  turf  huts,  of  their  thin  cattle,  of 
their  little  hairy  sheep,  and  of  their  strong  cakes 
of  meal. 

It  is  only  when  we  remember  all  this  tremendous 
history  of  fighting  and  of  rapine, — when  the  only 
bond  between  man  and  Chief  was  not  blood  in- 
herited, but  blood  shed  in  common, — that  we  can 
fully  understand  the  significance  of  the  very  earliest 
facts  which  reveal  to  us  the  condition  of  the  High- 
lands, when  the  light  of  history  first  shines  clearly 
upon  it.  Thus  more  than  forty  years  before  the 


CELTIC  FEUDALISM.  41 

close  of  the  Celtic  dynasty  of  Malcolm  Caumore, 
we  are  startled  by  finding  that  a  Knight  of  purely 
Norman  name  and  race  was  the  feudal  leader  of  a 
powerful  Highland  Clan,  and  the  possessor  of  a 
great  tract  of  country  in  the  very  heart  of  the 
Highlands.  This  comes  out  in  the  curious  story  of 
the  Byssets  which  well  illustrates  how  the  High- 
landers of  that  day  thoroughly  understood  Feu- 
dalism in  its  rude  and  archaic  principle  of  personal 
and  military  fidelity,  but  did  not  understand  it  in 
the  modifications  and  refinements  which  had  arisen 
among  races  more  advanced  in  civilisation,  in 
courtesy,  and  in  law.  In  the  year  1242,  in  the 
reign  of  Alexander  n.  (1214-1249),  a  great  tourna- 
ment was  held  in  Lothian,  near  Haddington.  The 
Byssets  came  to  it  from  the  mountains  and  glens 
of  Lochness  with  their  Highland  Clan.  One  of  the 
Byssets  was  unhorsed  by  the  young  Lord  of  Atholl. 
In  the  high  code  of  chivalry  this  involved  no  feud, 
nor  even  any  offence.  But  the  Celts  of  Loch  Ness 
understanding  only  that  part  of  Feudalism — noble 
in  itself, — which  consisted  in  fidelity  to  their  Lord, 
and  understanding  nothing  of  the  chivalry  which 
was  of  Norman  birth,  vented  their  anger  in  the 
murder  of  Atholl  and  the  burning  of  his  house. 
For  an  outrage  so  hideous  against  all  the  laws  and 
feelings  of  chivalry  the  Byssets  were  justly  out 
lawed,  and  it  shows  how  powerful  the  Scottish 
Monarchy  had  then  become  even  in  that  remote 
region  of  the  Highlands,  that  this  great  Norman 
family  were  deprived  of  their  lands,  and  their  some- 


42  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

what  incongruous  name  disappears  from  the  history 
of  the  Highlands. l 

But  it  is  equally  significant  both  of  the  state  of 
the  country  at  that  time,  and  of  the  course  which 
subsequent  history  has  taken,  that  part  of  the  same 
lands  in  the  heart  of  the  Highlands  were  transferred 
not  very  long  after,  in  the  Thirteenth  Century,  to 
another  family  of  blood  as   purely  Norman  as  the 
Byssets,    but   whose   name,  by   phonetic   decay  or 
assimilation,  has  become  one  of  the  most  familiar, 
and  one   of  the  most  Highland,  of  all  names  con- 
nected with  the  Clans.     This  is  the  name  of  Fraser. 
The  evidence  seems  complete  that  this  name  appears 
first  in  Norman-French  under  the  form  of  Frezeau, 
from  which  it  passed  through  the  forms  of  Fiezel 
and  the  English  Fresel,  until  fully  a  hundred  years 
before    this    Lothian   tournament   the    family    was 
firmly  established  in  the  Lowlands  of  Scotland,  with 
extensive   possessions,  under  the  name  of  Fraser.2 
From  this  position  they  passed  on  by  alliances  and 
military   services   until,    under    Robert   the   Bruce, 
they  became  lords  of  great  possessions  in  the  central 
Highlands,  where,  as  is  well  known,  under  the  title 
of  Lovat,  they  founded  and  maintained  for  centuries 
one  of  the  most  powerful  of  the  Highland  Clans.    It 
is  needless  to  say  that  Bruce  himself  was  the  im- 
mediate descendant  of  a  Norman  Knight,  De  Brus, 
that  his  family  was  first  settled  in  Yorkshire/  where 

1  Burton's  History  of  Scotland,  vol.  ii.  p.  889. 

2  The  Frasers  of  Philorth.     By  Lord  Saltoun,  vol.  i. 

3  Loclnnaben,  etc.,  by  Rev.  William  Graham  (18G5),  p.  7. 


CELTIC  FEUDALISM.  43 

it  was  cherished  by  the  successors  of  the  Conqueror, 
— and  that  its  first  possessions  were  in  the  Border 
counties  of  Scotland,  the  great  districts  of  Annan- 
dale  and  Carrick.1  Yet  from  the  moment  that  the 
standard  of  national  independence  was  raised  by 
Bruce,  he  had  no  more  devoted  adherents  than 
among  the  purest  Celts,  whilst  some  of  his  bitterest 
and  most  dangerous  opponents  were  the  descend- 
ants and  representatives  of  western  and  northern 
Clans  who  had  collected  under  Norseman  Chieftains. 
Among  the  earliest  of  his  followers,  and  among  the 
most  constant,  was  the  purely  Celtic  family  from 
which  I  am  descended — a  family  of  Scoto-Irish 
origin — that  is  to  say,  belonging  to  that  Celtic 
colony  from  Ireland  which  founded  the  Dalriadic 
Kingdom,  and  to  whom  the  name  of  Scots  originally 
and  exclusively  belonged.  The  name  when  it  first 
appears  in  writing  is  always  Cambel,  and  never 
Campbell,  the  letter  p  having  been  subsequently 
introduced  in  connection  with  the  fashion  which  set 
in  at  one  time  to  claim  Norman  lineage  as  more 
honourable  than  the  Celtic.  But  the  name  as  uni- 
versally written  for  many  generations  is  a  purely 
Celtic  word,  conceived  in  the  ancient  Celtic  spirit 
of  connecting  personal  peculiarities  with  personal 
appellatives.  "  Cam  "  is  "  curved,"  and  is  habitu- 
ally applied  to  the  curvature  of  a  bay  of  the  sea. 

1  Mr.  Cosmo  Innes  has  reminded  us  of  the  great  number  of  the 
greatest  names  in  Scotland  which  represented  Anglo-Saxon  and  Anglo- 
Norman  colonists — such  as  Cumin,  Douglas,  Dunbar,  Gordon,  Hamilton, 
Lindsay,  Maule,  Stewart,  Sinclair,  and  Wallace. — Origines  Parochialea 
ScotlcK,  Preface,  p.  xxvi. 


44  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

The  other  syllable  "  bel "  is  merely  a  corruption 
of  the  Celtic  word  "  beul,"  meaning  "mouth."  So, 
in  like  manner,  the  purely  Celtic  name  of  another 
Highland  family,  Cameron,  is  derived  from  the 
same  word  "  Cam,"  and  "  sron  "  the  nose.  But  that 
portion  of  the  Celtic  race  which  first  owned  the 
name  of  Scots  must  have  had  in  its  character  and 
development  something  which  made  it  predomi- 
nant, so  that  its  name  came  to  be  that  of  the  whole 
united  Monarchy.  Probably  all  its  Chiefs  had  a 
memory  and  traditions  which  predisposed  them  to 
fight  for  that  Monarchy  as  their  own.  Certain  it  is 
that  Sir  Nigel  Cambel  fought  with,  and  for,  the 
Bruce  in  all  his  battles  from  Methven  Bridge  to 
Bannockburn,  and  was  finally  rewarded  by  the 
hand  of  the  Lady  Marjory,  sister  of  the  heroic 
King,  who  achieved  the  final  independence  of  his 
Country. 

But  though  King  Robert  the  Bruce  had  the 
advantage  of  loyal  help  from  Chiefs  who  were  of 
purely  Celtic  blood,  he  does  not  seem  to  have  had 
the  smallest  difficulty  in  granting  complete  dominion 
over  large  tracts  in  the  Highlands  to  followers  who 
had  no  hereditary  connection  with  them.  To  his 
own  nephew,  one  of  the  noblest  and  bravest  of  all 
his  little  conquering  band,  Randolph,  he  gave  the 
great  Earldom  of  Moray, — one  of  the  most  extensive 
of  all  the  Highland  territories  which  had  been  long 
held  by  Celtic  Chiefs,  under  the  ancient  title  of  the 
Mormaers  of  Moray.  This  territory  stretched  from 
the  line  of  the  river  Spey,  on  the  east,  right  across 


CELTIC  FEUDALISM.  45 

the  whole  Highlands  to  the  western  coast  opposite 
to  Skye,  and  included  the  whole  modern  county  of 
Inverness  from  the  marches  of  Ross  on  the  north  to 
those  of  Argyll  on  the  south. *  We  have  seen  that 
Norman  Knights  had  long  before  been  established 
in  this  Celtic  country,  and  that  the  Celts  had  served 
them  with  a  rude  and  fierce  fidelity.  There  was  no 
reason  why  they  should  not  serve  with  equal 
fidelity  under  the  Ownership  and  the  lead  of  a  Chief 
who  was  a  leader  of  men  indeed, — whose  name  had 
become  famous  in  the  world, — and  in  whom  the 
strong  Norman  blood  had  been  quickened  by  Celtic 
descent  from  Malcolm  Canmore,  and  refined  by 
Saxon  inheritance  from  the  saintly  Margaret. 

1  Douglas's  Peerage,  vol.  i.,  Earldom  of  Moray. 


CHAPTER    II. 

THE  AGE    OF  CHARTERS. 

THERE  is  no  more  striking  illustration  of  the  per- 
fect continuity  between  things  new  and  old  in  the 
establishment  of  the  Feudal  System  than  is  to  be 
found  in  the  earliest  extant  feudal  Charters  con- 
ferring grants  of  land.  In  Scotland  they  begin  with 
the  Eleventh  Century.  For  an  excellent  reason 
those  who  have  written  about  them  are  obliged  to 
begin  with  at  least  one  much  older  document.  In 
the  end  of  the  Sixth  Century  Columba,  coming  from 
far  lona,  seems  to  have  established  a  Heligious 
House  among  the  north-eastern  Picts  in  that  district 
of  Scotland  between  the  Dee  and  the  Spey  which 
was  called  Buchan.  There  for  several  hundred  years 
the  little  Abbey  of  Deir  continued  to  carry  on  the 
succession  of  the  Old  Columbite  Church.  Some- 
where about  the  close  of  the  Ninth  Century,  after 
the  union  of  the  Picts  and  Scots,  one  of  the  Monks 
of  this  Abbey  employed  his  time  and  his  skill,  as 
so  many  of  his  brethren  did  all  over  the  Christian 
world,  in  making  an  embellished  copy  of  the  Gospels 
on  fair  vellum.  It  seems  to  have  been  kept  in  the 
Monastery  as  one  of  its  treasures,  because  nearly 
two  hundred  years  later  than  this  Latin  writing, 
another  Monk  could  find  no  more  safe  and  lasting 


THE  AGE  OF  CHARTERS.  47 

method  of  recording  the  benefactions  of  their  ancient 
House,  and  the  titles  by  which  they  held  their  lands, 
than  by  writing  the  history  of  them  on  the  broad 
margins,  and  on  the  vacant  half-pages,  of  this  old 
manuscript  of  the  Gospels.  This,  accordingly,  he 
did  in  the  Celtic  tongue,  which  appears  to  have 
been  a  spoken  language  in  Buchan  down  to  a  much 
later  date.  Tradition  is  perhaps  nowhere  safer  than 
when  it  is  transmitted  through  the  quiet  memories 
of  the  Cloister,  and  when  these  are  not  distorted  by 
the  atmosphere  of  religious  marvel.  On  secular 
affairs  such  memoranda  of  the  donations  and  grants 
of  Kings  and  Chiefs,  appear  to  have  been  accepted 
in  the  earlier  Middle  Ages  as  the  truest  evidence 
to  be  had  respecting  the  promises  of  the  dead  and 
the  obligations  of  the  living.  And  so  it  comes  to 
pass  that  the  Celtic  jottings  in  this  old  Book  of 
Deir  acquaint  us  with  a  long  succession  of  grants 
of  land  made  by  Celtic  "  Mormaers  "  and  "  Toisechs" 
to  the  Abbey  during  several  Centuries,  when  written 
Charters  were  unknown.  It  is  the  old  story. 
Lands  expressly  including  "  both  mountain  and 
field,"  were  given,  in  exclusive  possession,  to  the 
Columbite  Brethren,  sometimes  simply  named, 
sometimes  still  more  simply  described  by  childlike 
indications  such  as  these — "  as  far  as  the  Birch  tree 
is  between  the  two  Alterins."  But  one  essential 
feature  of  the  gift  or  grant  always  is,  that  the  land 
is  to  be  free  from  the  old  Celtic  Feudalism — the 
"  exactions  "  of  Mormaer  and  of  Toiseach.1 

1  National  Manuscripts  of  Scotland,  Part  i.  p.  3. 


48  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

It  is  impossible  to  understand  the  early  Charters 
—their  true  place  in  history,  in  usage,  and  in  law— 
without  reference  to  those  much  earlier  transactions 
which  had  been  going  on  for  more  than  500  years. 
Under  these,  land  had  been  conveyed  by  and  to  the 
same  ranks  and  conditions  of  men — from  the  same 
motives — in  exercise  of  the  same  powers — and  with 
the  same  promises  and  effects.  There  was  no 
change  whatever,  except  that  earliest  step  in  civili 
sation  which  comes  with  the  more  familiar  know- 
ledge of  the  art  of  writing,  and  which  substitutes 
the  sure  evidence  of  documents  that  can  be  read, 
for  the  memories  of  intention  transmitted  only 
through  the  ear,  and  recorded  only  by  the  breath. 
That  there  was  no  consciousness  of  any  novelty 
as  regarded  the  nature  of  the  transaction  in  the 
minds  of  those  who  gave  the  first  Charters  in  Scot- 
land, is  clear  from  the  very  form  and  nature  of  the 
Instruments  themselves.  For  in  this  lies  the  full 
explanation  of  one  great  peculiarity  about  them 
which  has  often  been  observed,  but  the  true  signifi 
cance  of  which  has  not  been  always  as  clearly  seen. 
This  peculiarity  is  the  extreme  shortness  and  sim- 
plicity of  the  earlier  Charters.  For  brevity  and 
conciseness  they  have  been  always  the  wonder  and 
admiration  of  modern  lawyers.  But  the  cause  and 
the  meaning  of  their  shortness  and  simplicity  have 
too  much  escaped  attention.  If  they  had  purported 
to  give  or  to  secure  anything  which  had  not  been 
well  known  before,  this  striking  brevity  would  have 
been  impossible.  If  they  had  conveyed  new  rights 


THE  AGE  OF  CHARTERS.  49 

and  imposed  new  duties,  it  would  have  been  neces- 
sary to  describe  these,  and  to  explain  them.  But 
as  they  neither  did  nor  professed  to  do  anything  of 
the  sort — as  they  were  nothing  more  than  a  new 
Form  of  acknowledgment  and  security  for  ancient 
rights  which  had  been  familiar  in  the  actual  trans- 
actions of  life  for  centuries  before — it  was  not  neces- 
sary to  explain  anything.  Dominion  over,  and 
exclusive  possession  ot,  property  in  land,  with  all  its 
incidents,  had  been  vested  in  Kings  and  Chiefs,  and 
in  others  under  them,  in  Scotland,  as  in  all  other 
countries,  time  out  of  mind.  Hence,  the  earliest 
feudal  Charters  could  be,  and  were,  actually  con- 
fined to  a  few  lines  on  parchment,  expressing  nothing 
but  the  promise  and  the  faith  of  those  who  had  the 
actual  power  to  grant,  and  the  name  and  designa- 
tion of  those  who  were  in  a  position  to  accept,  all 
the  well-known  powers  and  obligations  of  Ownership 
in  land. 

A  very  clear  proof  of  the  great  antiquity  of  all 
these  possessory  rights  and  powers  comes  out  in  the 
result  of  a  formal  inquiry  or  "  inquest  "  held  in  the 
year  1116  respecting  the  landed  property  of  the 
ancient  See  of  Glasgow  founded  by  St.  Kentigern 
in  the  Seventh  Century.  That  property,  as  ascer- 
tained upon  oath  before  "  good  men  of  the  country," 
who  conducted  the  inquest,  must  have  consisted  in 
grants  and  donations  to  the  first  Bishop  and  his 
early  followers  which  were  then  nearly  500  years 
old.  Yet  the  evidence  was  so  consecutive  and  con- 
clusive, that  the  verdict  was  accepted  by  numerous 

VOL.  I.  D 


50  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

and  powerful  men  who  had  the  strongest  personal 
interest  in  testing  it  to  the  last.  Possession  fol- 
lowed upon  it.  And  this  possession  did  not  consist 
in  mere  Tithes  or  in  mere  Church-dues,  but  in  broad 
lands,  and  numerous  Manors  scattered  all  over  the 
south  of  Scotland.1  It  was  not  the  nature  of  the 
thing  done,  but  only  the  method  of  recording  it  that 
underwent  a  change  in  the  dawning  light  of  a  rising 
civilisation.  The  earliest  extant  Charter  of  lands 
in  Scotland  is  by  King  Duncan,  son  of  Malcolm 
Canmore,  and  of  the  Saxon  Queen  Margaret  (109-4-7). 
It  is  a  grant  to  a  Religious  House,  the  Monks  of 
St.  Cuthbert.  It  specifies  the  lands  by  name,  and 
refers  to  the  "  service  "  due  therefrom  as  the  essence 
of  their  value.  The  extent  and  nature  of  that 
service  is  simply  described  as  the  service  previously 
possessed  by  a  certain  Bishop  Fodan.  All  rents 
and  dues  at  that  time  necessarily  took  principally 
the  form  of  "  service,"  and  it  was  the  right  of 
receiving  "  service  "  from  any  given  lands  that 
mainly  in  that  age  constituted  their  value.  There 
was  no  attempt  or  need  to  specify  what  they  were, 
further  than  by  reference  to  the  continuity  of  enjoy- 
ment from  a  former  Owner.  It  is  this  definite  refer- 
ence to  well-known  pre-existing  rights  that  is  one 
of  the  most  striking  features  of  the  early  Charters, 
and  it  was  this  alone  which  made  it  possible  for 
them  to  be  so  concise.  But  no  general  description 
of  these  early  Charters  of  the  Eleventh  Century 
can  be  so  striking  as  the  documents  themselves. 

1   Oriyines  Parochiales  Scot'uv,  Preface,  pp.  xxiii.-iv. 


THE  AGE  OF  CHARTERS.  51 

Here,  therefore,  I  give,  in  extenso,  a  literal  transla- 
tion of  this  oldest  of  Scottish  Charters  :— 

CHARTER  OF  KING  DUNCAN  TO  THE  MONKS  OF 
ST.  CUTHBERT.   A.D.  1094. 

I  Dunecan,  Son  of  King  Malcolumb,  by  hereditary 
right  King  of  Scotland,  have  given  in  alms  to  Saint 
Cuthbert  and  to  his  servants,  Tiningeham,  Aldeham, 
Scuchale,  Cnolle  Hatherimich,  and  of  Broccesmuthe, 
all  the  service  which  Fodan  the  Bishop  thence  had. 
And  these  I  give  in  such  quittance,  with  sac  and 
soc  (Jurisdiction),  as  ever  St.  Cuthbert  has  had  best 
from  those  from  whom  he  holds  his  alms.  And  this 
I  have  given  for  myself,  and  for  the  soul  of  my 
father,  for  my  brothers  and  for  my  wife,  and  for  my 
children.  And  because  I  would  that  this  gift  should 
be  firm  to  Saint  Cuthbert,  I  have  made  my  brothers 
join  in  the  grant.  But  whosoever  would  destroy 
this,  or  take  from  the  servants  of  Saint  Cuthbert 
any  thing  of  it,  let  him  bear  the  curse  of  GOD,  and 
of  Saint  Cuthbert  and  mine.  AMEN. 

Then  follow  the  rude  crosses  which  the  greatest 
laymen  of  that  age  could  alone  make  to  indicate 
their  signature — one  cross  for  the  King — nine  for 
as  many  witnesses,  and  one  for  the  learned  Scribe 
who  wrote  the  Deed,  and  who  added  across  the 
uncultured  but  sacred  symbols  such  syllables  as 
these — "Crux  Duncani."1 

The  same  general  character  belongs  to  all  the 

1  National  Manuscripts  of  Scotland,  Part  i.  No.  II.  p.  4. 


52  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

Charters  given  by  the  Scottish  Sovereigns  during 
the  Eleventh,  Twelfth,  and  Thirteenth  Cenritues— 
that  is,  from  the  death  of  Malcolm  Canmore,  in 
1093,  to  the  death  of  Alexander  in.,  in  1286. 
Nor  must  it  be  supposed  that  these  things  were 
done  in  a  corner — that  they  were  the  individual 
acts  of  Kings,  executed  without  warrant  from  the 
universal  sentiment  of  the  nation.  In  the  reign  of 
David  i.  (1124-1153)  Charters  of  land  were  expressly 
given  with  what  may  be  called  in  modern  language 
the  consent  of  Parliament  or  Great  Council  of  the 
nation.  In  the  old  Celtic  "  Scotland  "  proper,  which 
lay  north  of  the  Forth,  they  had  been  given  in  the 
true  Celtic  spirit,  with  the  formal  assent  and  con- 
currence of  the  Seven  Earls,  the  Chiefs  of  the  Seven 
great  Provinces  of  the  North.  But  in  King  David's 
time,  when  the  Southern  Provinces  had  been  added 
to  the  Monarchy,  they  were  given  "with  confir- 
mation of  Bishops,  Earls  and  Barons  " — to  which  is 
sometimes  added  "  with  consent  of  the  clergy  and 
people." l  All  ranks  and  orders  were  not  only 
familiar  with  the  nature  of  such  grants  in  all  parts 
of  the  Kingdom,  but  were  familiar  with  nothing 
else  as  the  only  guarantee  of  peaceful  Ownership. 
And  so,  no  elaboration  was  required.  The  Clergy 
were  the  only  lawyers  and  the  only  conveyancers. 
They  wrote  concisely,  and  to  the  point.  Bits  of 
parchment  one  inch  in  breadth,  and  a  very  few 
inches  in  length,  were  enough  to  convey  great 

1  "  Clero  etiam  acquiescente   et  populo."      Skene's    Celtic   Scotland, 
vol.  i.  p.  459. 


THE  AGE  OF  CHARTERS.  53 

Earldoms  and  Baronies  in  the  days  of  David  I. 
Eleven  lines  on  a  small  parchment  conferred  the 
whole  of  Annandale  upon  an  ancestor  of  King 
Robert  the  Bruce.  This  Charter  is  so  typical,  and 
stands  so  early  among  those  conveying  lands — not 
to  Churches  but  to  laymen — that  I  give  it  also 
in  full  translation  : — 

CHARTER  OF  AN  AN  DALE  TO  ROBERT  DE  BRUS, 
A.D.    1124-1130. 

David  by  the  Grace  of  God,  King  of  Scots,  to 
all  his  Barons  and  men  and  friends,  French  and 
English,  greeting.  Know  that  I  have  given  and 
granted  to  Robert  de  Brus,  Estrahanent,  and  all  the 
land  from  the  march  of  Dunegal  of  Stranit,  even  to 
the  march  of  Randolph  Meschin.  And  I  will  and  grant 
that  he  hold  and  have  that  land  and  its  castle,  well 
and  honourably,  with  all  its  customs,  to  wit,  with 
whatever  customs  Randulph  Meschin  had  in  Carduill 
and  in  his  land  of  Cumberland,  on  whatever  day  he 
had  them  best  and  most  freely.  Witnesses.  .  .  . 

It  will  be  observed  that  in  this  Charter  there  is 
not  one  word  of  definition  except  by  explicit  refer- 
ence to  previous  well-known  and  established  rights. 
The  lands  are  described  by  marches  which  are 
assumed  to  admit  of  no  dispute.  But  all  "customs"  or 
services  are  simply  referred  to  as  those  which  a  for- 
mer Proprietor  had  enjoyed,  at  whatever  time  and 
under  whatever  circumstances  he  had  them  "  best 
and  most  freely."  No  feudal  service  whatever  is 


54  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

provided  for  in  the  Charter.  Probably  this  also  was 
left  to  usage  and  to  the  general  duties  of  allegiance. 
These  earliest,  and  almost  archaic  forms  of  Charter 
are  of  the  highest  interest  and  importance,  because, 
rude  and  simple  as  they  are,  they  contain  not  only 
the  germs,  but  the  main  provisions,  and  even  some 
of  the  very  words  oat  of  which  the  latest  and  most 
elaborate  Charters  were  naturally  evolved.  First  it 
was  their  object  simply  to  record  ;  and  then, 
secondly,  it  became  of  necessity  their  object  to 
define.  It  is  impossible  to  record  clearly  anything 
which  cannot  be  defined  distinctly.  But  nothing 
can  be  defined  distinctly  respecting  which  our  own 
conceptions  are  vague  and  hazy,  or  which  is  in  itself 
variable — in  the  sense  of  depending  wholly  on  arbit- 
rary Will.  Hence  it  was  that  in  the  very  nature  of 
things  Charters  tended  to  the  abolition  of  the  old 
lawless  exactions  of  Celtic  Feudalism.  They  effected 
this  as  regards  all  lands  given  to  the  Church  by  ex- 
pressly forbidding  these  exactions  altogether.  They 
effected  the  same  object  as  regards  lands  granted  to 
laymen  by  substituting  definite  and  fixed  amounts  of 
payment  or  of  service. 

But  the  same  necessity  for  deliberate  thought 
which  is  one  of  the  great  causes,  and  at  the  same 
time  one  of  the  great  consequences  of  civilisa- 
tion, called  for  another  definition  in  the  Charters. 
What  was  it  that  they  gave  ?  What,  and  how 
much  were  they  intended  to  secure  ?  When  no 
technical  phrases  had  been  yet  established,  how  was 
property  in  land  to  be  described  ?  The  very  simple 


THE  AGE  OF  CHARTERS.  55 

and  childlike  expedient  of  describing  the  things  given 
as  the  same  with  those  previously  enjoyed  by  the 
last  Owner,  and  of  adding  by  way  of  emphasis  that 
this  equality  was  to  be  maintained  up  to  the  highest 
level  of  that  enjoyment  at  its  best  and  fullest — this 
expedient  obviously  could  not  be  lasting.  It  is 
indeed  very  curious  how  long  it  did  survive  in 
various  forms  of  expression,  which  are  easily  recog- 
nised as  relics  of  the  infantile  conception  which  we 
have  seen  expressed  in  the  two  Charters  already 
given.  But  the  needful  definition  soon  began  to 
grow.  It  was  purely  an  instinctive  and  not  at  all 
a  formal  or  scientific  process.  It  came  in  the  simple 
effort  to  record  what  was  meant  by  the  great 
Manors  and  Lordships  as  well  as  the  smaller  estates 
which  had  been  enjoyed  for  centuries.  Did  they 
mean  nothing  but  the  possession  of  some  small 
area  of  ground  which  had  been  roughly  inclosed 
and  brought  into  cultivation  ?  Did  all  the  rest  of 
the  land,  which  in  those  early  days  must  have  been 
by  far  the  greater  part  of  the  country — wild  ground, 
bogs,  woods,  natural  opens  of  rough  grass,  hills, 
mountains — did  all  these  great  areas  of  country 
belong  to  everybody  in  general  and  to  nobody  in 
particular?  Did  the  fact  that  these  spaces  were 
used — in  the  only  way  in  which  they  could  be  used 
—as  pasture  for  the  cattle  and  sheep  of  Bondmen 
and  of  followers,  and  of  retainers — of  all  in  fact 
who  lived  upon  or  near  the  land — did  this  scattered 
and  indefinite  use  prevent,  preclude  or  limit  the 
full  Ownership  of  the  Chief,  or  Lord,  or  Owner  K 


56  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

Had  any  great  break  or  change  occurred  since  the 
old  centuries  when  the  Celtic  Rook  of  Deir  had 
recorded  that  grants  of  land  included  "  both  Moun- 
tain and  Field "  ?  Not  at  all  as  definite  legal 
problems  to  be  solved,  or  as  questions  even  con- 
sciously propounded,  but  as  a  necessity  of  thought 
in  the  mere  act  of  recording  that  which  Charters 
were  intended  to  convey,  these  alternative  concep- 
tions would  be  naturally  and  inevitably  encountered. 
Accordingly  when  we  look  into  the  Charters  the 
growth  of  definite  ideas,  and  of  definite  expressions, 
is  most  curious  and  instructive.  In  the  first  extant 
Charter  from  King  Duncan,  as  we  have  seen,  there  is 
nothing  whatever  to  express  Possession  except  the 
words,  "have  given  in  alms"  the  lands  whose  names 
follow — with  the  explanation  added, "  all  the  service" 
which  a  preceding  Owner  "  thence  had."  The  second 
Charter  to  Robert  de  Bras  amplifies  these  ex- 
pressions a  little.  Here  it  is  "  all  the  land  "  within 
certain  known  boundaries  which  is  "given  and 
granted,"  with  a  further  explanation  that  it  is  to  be 
"  held  and  had"  with  its  Castle  and  "  all  its  customs" 
as  held  by  a  predecessor.  This  is  a  step  in  advance, 
because  "all  the  land"  is  clearly  intended  to  cover 
the  whole  area  whether  cultivated  or  waste.  But  a 
few  years  later  than  King  Duncan's  Charter,  in  the 
reign  of  King  Edgar  (1097-1107)  we  have  another 
Charter  even  shorter  than  the  first,  but  in  which  we 
see  still  further  progress  in  explicit  definition.  It  is 
a  grant  to  the  same  religious  Brotherhood  which  was 
specially  favoured  by  the  descendants  of  Queen 


THE  AGE  OF  CHARTERS.  57 

Margaret,  the  Monks  of  St.  Cuthbert.  Here  the 
words  are  fuller,  although  still  marvellously  concise. 
The  estate  is  designated  by  its  name,  with  these 
words  following  :  "  both  in  lands  and  in  waters,  and 
with  all  that  is  adjacent  to  it — namely,  that  land 
which  lies  between  Horverdene  and  Cnapdene — to 
have  and  to  hold  freely  and  quietly,  and  to  be  dis- 
posed of  at  the  will  of  the  Monks  of  St.  Cuthbert."1 
The  absence  of  formality — the  perfect  simplicity 
with  which  these  expressions  are  used,  indicate  clearly 
that  they  were  nothing  more  than  a  mere  putting 
into  words  of  the  common  understanding  of  the  age, 
respecting  all  that  was  carried  in  a  gift  of  lands. 
In  this  case  the  waters  appertaining  to  the  land  are 
mentioned  incidentally  as  included  in  the  gift.  And 
so  in  yet  another  Charter  of  the  same  Reign,  which 
is  the  shortest  of  all,  we  have  one  item  specified — 
which  speedily  disappeared  for  ever — namely,  the 
"  men  "  or  Bondmen  who  were  resident  on  the  pro- 
perty conveyed.2  The  words  are,  "  with  men,  with 
lands,  and  waters."  And  then  in  another  Charter 
we  have  light  cast — through  the  same  little  lattice- 
windows  of  expression — on  those  most  interesting 
of  all  points  connected  with  the  history  of  the 
occupation  and  improvement  of  land — namely,  the 
condition  of  the  Bondmen,  and  the  conditions  under 
which  the  reclamation  of  wilds  and  wastes  was  then 
deliberately  undertaken.  In  this  document 3  the 
King  adds  these  words : — "  I  have  also  given  to 

1  National  Manuscripts  of  Scotland,  Part  i.,  No.  III. 

2  Ibid.  No.  V.  3  Ibid.  No.  IV. 


58  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

the  Monks  twenty-four  beasts  for  reclaiming  the 
same  land,"  and  goes  on  further  to  explain  that 
by  express  agreement  with  the  "  men  "  of  a  certain 
district  he  had  ordained  that  they  should  pay  to 
the  Monks  half  a  silver  merk  yearly  for  every 
plough.  This  is  clearly  a  case  of  commuted  service. 
If  it  refers  to  Bondmen  it  shows  how  light  that 
bondage  had  become  when  they  were  consulted  and 
made  parties  to  the  arrangement.  If  they  were 
Freemen  it  shows  the  permeating  effect  of  Charters 
in  substituting  fixed  payments  for  old  but  arbitrary 
exactions. 

As  we  come  down  in  time,  during  the  reign  of 
David  i.,  there  is  a  rapid  development  of  form,  and 
of  expression,  especially  when  that  Sovereign  had 
to  deal  with  the  great  Religious  Houses  of  Melros, 
Kelso,  and  Holyrood.  Probably  among  the  Monks 
in  those  parts  of  the  Low  Country  there  were 
writers  of  greater  skill.  There  is  nothing,  however, 
in  those  Charters  which  indicates  any  novelty  what- 
ever in  the  benefits  conferred.  On  the  contrary, 
there  are  the  same  allusions  to  previous  Owners, 
and  to  accustomed  powers.  But  there  is  a  steady 
growth  in  the  direction  of  greater  precision,  and  of 
a  more  complete  enumeration  of  the  rights  which 
were  universally  understood  to  be  involved  in  Owner- 
ship. Some  of  these  depended  on  local  position, 
such  as  rights  over  the  wrecks  of  ships.  Fishings 
assume  from  the  beginning  a  very  definite  place, 
showing  how  highly  they  were  valued  as  an  appur- 
tenance of  certain  estates.  Moreover,  these  are 


THE  AGE  OF  CHARTERS.  59 

often  conveyed  in  limited  shares  sometimes  upon 
distant  streams,  and  restricted  to  the  sweep  of  .a 
fixed  number  of  nets.  But  in  these  Charters  we 
see  the  ordinary  and  standing  definition  of  that 
which  was  specially  conveyed  in  grants  of  land, 
assuming  substantially  the  form  which  it  retained 
for  centuries.  That  form  arose  naturally  and  neces- 
sarily out  of  the  endeavour  to  enumerate  as  exhaus- 
tively as  possible  all  the  kinds  and  qualities  of 
surface  which  the  land  presented  almost  every- 
where in  those  ages.  Thus  the  Charter  of  Melros 
specifies  lands  to  mean  "  the  whole  land  in  wood 
and  plain,  in  meadows,  and  in  waters,  in  pastures  and 
moors,  in  ways  and  paths,  and  in  all  other  things."  l 
It  must  always  be  remembered  that  the  way  in 
which  land  is  used,  in  respect  to  agriculture,  is  a 
totally  different  matter  from  the  principle  on  which 
land  is  held,  in  respect  to  Ownership.  The  method 
of  use  is  one  thing ;  the  principle  or  the  condition 
of  tenure  is  quite  another  thing.  It  is  a  great  con- 
fusion of  thought  to  confound  these  two  together. 
Traces  and  records  and  survivals  in  abundance, 
show  that  great  areas  of  country  were  once  used 
by  many  men  in  common,  and  from  this  it  is  con- 
cluded that  the  Ownership  could  not  have  belonged 
to  an  individual.  But  this  is  altogether  erroneous. 
If  the  Ownership  in  the  fullest  sense  had  not  be- 
longed to  individuals  in  those  days,  the  men  who 
enjoyed  the  common  use  of  it  would  not  have  been 
allowed  to  enjoy  it  long.  There  were  plenty  others 

1  National  Manuscripts  of  Scotland,  Part  i.  No.  XVII. 


60  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

ready  to  seize  it  at  a  moment's  notice,  if  it  were 
not  protected  by  the  powerful  Chief  or  Baron  who 
had  the  interest  of  exclusive  Ownership  to  assert 
and  to  defend.  Just  as  the  Crown  promised  its 
protection  to  him  as  Owner,  so  he,  and  he  alone, 
could  afford  protection  to  his  men  as  Users.  But 
the  promiscuous  use  of  such  lands  amongst  his 
Tenants  and  retainers  was  a  necessity  arising  out  of 
the  nature  of  things.  Wild  wastes,  and  woods  and 
moors,  could  only  be  used  by  and  for  a  number  of  men, 
although  the  Ownership  lay  in  one.  Such  surfaces 
were  then  useless  except  for  pasture  or  the  chase, 
and  as  they  were  without  fences  or  divisions  of  any 
kind,  separate  areas  could  not  be  kept  for  the  cattle 
of  separate  individuals.  In  this  sense,  but  in  this 
sense  only,  they  were  used  in  common.  But  they 
were  so  used  only  by  individualised  groups  of  men, 
whether  bond  or  free,  whose  tenure  was  dependent 
on  the  tenure  of  the  Lord  to  whom  by  Charter  it 
had  been  given,  or  in  whose  hands  still  more  ancient 
rights  of  Ownership  had  by  Charter  been  recognised 
and  confirmed.  It  was  always  to  him  that  the 
native  population  (nativi)  whom  lie  found,  or  the 
colonists  (coloni]  whom  he  brought,  or  the  Free 
Tenants  whom  he  invited,  owed  even  one  moment's 
security  and  peace.  The  enjoyment  which,  under 
him,  was  common  to  the  Few,  was  an  enjoyment 
absolutely  exclusive  of  the  Many.  And  the  Many 
were  always  quite  near  enough  to  make  them  a 
continual  presence  in  the  mind.  From  across  some 
rough  hill,  or  over  some  dreary  moor,  or  from  beyond 


THE  AGE  OF  CHARTERS.  61 

some  firth  or  bay  of  the  sea,  outsiders,  representa- 
tive of  the  Many,  were  always  ready  to  rush  in 
upon  the  Few  who  were  protected  in  the  exclusive 
enjoyment  of  good  natural  meadows,  or  of  sheltered 
woods  with  fine  pastoral  glades,  stocked  with  sheep, 
and  swine,  and  cattle.  Nothing  but  the  quieting 
effect  of  acknowledged  power  and  right,  founded 
on  the  deeds  and  on  the  authority  of  centuries, 
could  then  keep  the  country  in  peace,  or  give 
time  and  place  for  the  settlements  and  improve- 
ments of  civilisation.  Hence  the  recording  work 
of  Charters  would  have  been  indeed  imperfect  if 
it  had  not  carefully  included  all  the  lands  which, 
so  far  as  the  plough  was  concerned,  were  then 
wastes  and  wildernesses,  within  the  area  of  indi- 
vidual Ownership,  for  responsibility  and  defence. 
It  is  not  too  much  to  say,  that  if  the  thoughtless 
sentiment  which  is  now  so  often  cherished  in  favour 
of  the  common  use  of  land,  as  distinguished  from 
individual  Ownership,  had  been  a  sentiment  capable 
of  existing  in  the  Eleventh  and  Twelfth  Centuries, 
Scotland,  which  was  largely  desert  then,  would 
have  been  nearly  as  desert  at  the  present  day. 

Perhaps  it  may  occur  to  some,  as  a  distinction, 
that  the  Charters  I  have  quoted  had  all  of  them 
reference  to  parts  of  the  country  which  are  now 
Lowland,  and  were  settled  by  the  Teutonic  races. 
But  this  is  to  pre-date  a  condition  of  things  which 
had  not  then  arisen.  We  have  already  seen  how 
completely  the  Highlands  proper  had  been  pene- 
trated, through  and  through,  by  the  power  and 


62  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

leadership  of  those  races.  We  have  seen,  too,  how 
Feudalism  in  its  very  roughest  and  rudest  forms  had 
been  long  established  as  the  very  root  and  essence 
of  the  ties  which  bound  together  the  Celtic  Chiefs 
and  Clans.  But  in  addition  to  all  this  we  have  to 
remember  that  in  the  Eleventh  and  Twelfth  Cen- 
turies a  great  part  of  Scotland,  which  was  gradually 
becoming  predominantly  Teutonic,  was  still  at  that 
time  full  of  Celts,  and  that  the  early  Charters 
recorded  nothing  that  had  not  been  long  habitually 
known  to  them.  We  have  seen  that  the  Book  of 
Deir,  written  in  Buchan  in  the  Twelfth  Century, 
recorded  the  transactions  of  many  centuries  in  the 
Celtic  tongue.  We  hear  that  when  Malcolm 
Canmore  visited  the  plains  or  low  country  of  Moray 
he  had  to  translate  the  speech  of  the  people  to  his 
Saxon  Queen.  Gaelic  seems  to  have  been  certainly 
understood  in  Aberdeen  and  Banff  so  late  as  the 
beginning  of  the  Twelfth  Century.  The  whole  of 
the  south-west  of  Scotland,  from  the  Clyde  to  the 
Solway,  the  Province  of  Galloway,  was  in  those 
centuries  mainly  Celtic,  and  the  Charters  of  King- 
David  are  often  specially  addressed  to  "  Gal- 
wegians,"  as  well  as  to  French  (Normans)  and 
Angles.  Down  even  to  the  close  of  the  Seventeenth 

o 

or  the  beginning  of  the  Eighteenth  Century  we  are 
told  on  good  authority  that  even  in  the  County  of 
Fife  so  many  of  the  poorer  classes  still  used  only 
the  Gaelic  language  that  it  was  an  impediment  in 
the  employment  of  them  south  of  the  Forth.1  It  is 

1  Bart's  Letters  from  the  Highlands,  ed.  187(5,  vol.  i.  p.  165. 


THE  AGE  OF  CHARTERS.  63 

clear,  therefore,  that  in  no  part  of  Scotland,  and  to 
no  one  of  its  component  races,  were  the  powers  and 
gifts  conveyed  by  Charter  anything  but  a  new  form 
of  record  for  old  and  familiar  facts. 

On  this  point,  however,  we  have  one  confirma- 
tory circumstance  which,  if  any  were  needed,  would 
alone  have  the  highest  value.  I  have  already  re- 
ferred to  the  fact  that  for  one  hundred  years  before 
the  Anglo-Normans  invaded  Celtic  Ireland,  the 
native  Chiefs  and  Kings  had  begun  to  give  grants 
of  land  conveyed  in  the  definite  form  of  Charter. 
In  the  Latin  Charter  given  by  the  Irish  King  of 
Leinster  to  the  Monastery  of  Duisk  we  find  fairly 
begun  the  same  method  of  enumerating  the  things 
and  powers  conveyed  in  the  possession  of  land 
which  we  have  seen  also  beginning  in  the  corre- 
sponding Instruments  in  Scotland.  It  was  a  method 
of  enumeration  which  became  amplified  from  time  to 
time  so  as  to  include  complete  possession  of  every- 
thing upon  the  land  which  had  come  to  be  known 
as  of  any  value  in  the  use  or  enjoyment  of  it.  This 
shows  that  among  the  native  Celts  of  Ireland  there 
was  nothing  new  or  strange  in  such  kind  and  such 
measure  of  possession.  The  Irish  Charter  of  the 
(approximate)  date  of  11  GO  gives  the  definition  or 
enumeration  in  two  separate  forms.  First,  the 
lands  are  mentioned  by  name,  and  then  these  words 
are  added,  "  with  all  their  pertinents  in  waters,  in 
pastures,  in  woods  "-  —to  which,  again,  are  added  in 
another  line,  referring  to  another  portion,  "  with  all 
its  former  pertinents,  in  rivers  and  in  meadows  and 


G-i  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

in  groves."1  The  second  of  the  only  two  Latin 
Charters  which  remain  to  us  from  Irish  native 
Kings,  and  which  is  from  the  King  of  Limerick,  of 
about  nine  years'  later  date  (1169),  shows  a  further 
development  of  the  same  kind  of  enumeration, — for 
it  adds  to  the  other  words  already  quoted  these 
further, — "  in  fishings  and  in  mills." '  Both  of  these 
are  in  the  highest  degree  significant  of  the  indi- 
vidual appropriations  connected  with  land,  which 
in  actual  life  and  fact  had  come  to  be  of  use  and 
wont  among  the  Celts  of  Ireland.  If  vague  Tribal 
rights  had  survived  in  anything,  we  might  have 
expected  to  find  them  in  respect  to  fishings  and  in 
respect  to  Mills — both  of  wrhich  were  great  sources 
of  wealth  in  those  early  days,  and  one  of  which— 
Mills — enabled  the  proprietor  to  levy  heavy  dues  on 
all  the  cereal  produce  of  large  districts  of  country. 

Returning  to  the  progress  of  Charters  in  Scot- 
land, there  is  an  interesting  difference  to  be 
observed  between  two  Charters,  both  given  to 
ancestors  of  King  Robert  the  Bruce.  I  have 
already  quoted  one  of  extreme  brevity  and  sim- 
plicity of  form,  given  by  David  I.  to  Robert  de 
Brus,  of  certain  lands  previously  held  by  a  certain 
Randulph  Meschin.  But  the  same  Sovereign  gave 
to  the  same  favourite  Knight  another  more  im- 
portant Charter  of  the  whole  of  Annandale  to  be 
held  in  Forest.  This  Charter  also  is  so  short  and 
simple  as  to  be  interesting  in  the  same  point  of 

1  National  Manuscripts  of  Ireland,  Part  ii.  No.  LXII. 

2  Ibid.  No.  LXIII. 


THE  AGE  OF  CHARTERS.  65 

view — as  the  mere  record  of  transactions  which  in 
themselves  were  evidently  so  familiar  as  to  need  no 
elaborate  explanation.  It  runs  thus  : — 

"  David  King  of  Scots  to  all  good  men  of 
his  whole  land,  French  and  English  and  Galwe- 
gians,  greeting.  Know  that  I  have  given  and 
granted  to  Robert  de  Brus  in  fee  and  heritage,  to 
him  and  his  Heir,  the  Valley  of  Anan,  in  forest,  on 
both  sides  of  the  river  of  Anan  as  the  marches  are 
from  the  forest  of  Selkirk  as  far  as  his  land  extends 
towards  Stradwith  and  towards  Clyde,  freely  and 
quietly  as  any  other  forest  of  his  is  best  and  most 
freely  held.  Wherefore  I  forbid  that  any  one 
hunt  in  the  aforesaid  forest  unless  by  his  authority 
on  pain  of  forfeiture  of  ten  pounds,  or  that  any  one 
go  through  the  aforesaid  forest  unless  by  a  straight 
road  appointed."  *  (Witnesses.) 

But  some  fifty  years  later,  in  the  reign  of 
William  the  Lion  (1165-1214),  the  grandson  of 
this  elder  Robert  de  Brus,  obtained  from  that 
Sovereign  a  new  Charter  of  Confirmation  for  the 
lands  of  Annandale,  and  this  second  Charter  shows 
a  very  considerable  advance  in  legal  elaboration. 
Still,  we  see  that  it  is  elaboration  of  form  and 
nothing  more.  It  is  a  mere  fuller  explanation  of  all 
that  had  been  meant  and  implied  before.  The 
enumeration  is  more  explicit.  The  lands  are  granted 
"  in  wood  and  plain,  in  meadows  and  pastures,  in 
moors  and  marshes,  in  waters,  stanks  and  mills,  in 
forests  and  trysts  (markets),  in  hills  and  harbours, 

1  National  Manuscripts  of  Scotland,  Part  i.  No.  XX. 
VOL.  I.  E 


6G  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

in  ways  and  paths,  in  fishings  and  in  all  other  its 
just  appurtenances,  as  freely,  quietly,  fully,  and 
honorably  as  ever  his  father  or  he  himself  most 
freely,  quietly,  fully,  and  honorably  held  that  land 
of  King  David  my  grandfather,  or  of  King  Malcolm 
my  brother — excepting  the  royal  rights  which 
belong  to  my  Royalty,  to  wit,  Treasure-trove,"  etc. 
And  all  this  was .  to  be  held  for  military  service, 
expressly  limited  to  ten  knights,  and  with  special 
abolition  of  a  burden  or  exaction  which  had  evidently 
been  customary  before— namely,  that  of"  warding" 
the  Royal  Castles  in  the  district.1 

In  this  Charter  we  have  very  nearly  in  full 
development  all  the  essential  features  of  grants  of 
land  throughout  the  Middle  Ages.  They  were  not 
all  identical  in  their  terms,  because  the  scope  and 
intention  of  such  Instruments  were  not  always  the 
same.  But  the  variations  were  just  of  the  kind  to 
show  that  in  every  case  the  forms  of  expression  were 
not  merely  conventional,  but  were  measured  by  the 
different  meanings  of  the  Donor  in  each  case.  Thus 
there  were  Charters  which  conveyed  rights  of 
grazing  only,  and  not  of  the  soil  in  Ownership. 
Again,  there  were  grants  of  grazing  without  the 
grants  of  game,  and  vice  versd,  there  were  grants  of 
game  and  forest  with  express  reservation  of  the 
rights  of  grazing,  which  are  given  separately  and  to 
different  men.  Some  of  these  old  records  afford  us 
curious  glimpses  of  the  condition  of  the  country  and 
of  the  habits  and  manners  of  the  time.  Thus  the 

1  National  Manuscripts  of  Scotland,  Part  i.  No.  XXXIX. 


THE  AGE  OF  CHARTERS.  67 

Avenels,  Lords  of  Eskdale,  had  a  quarrel  with  the 
Monks  of  Melros,  arising  out  of  the  fact  that  to  the 
Monks  they  had  given  by  Charter  rights  of  occupa- 
tion for  agriculture  and  for  grazing  in  a  forest  over 
which  the  Avenels  had  kept  only  the  exclusive 
privilege  of  the  chase.  The  quarrel  is  composed  by 
a  fresh  agreement  before  King  Alexander  II.  (1214- 
1249),  whose  edict  or  award  goes  into  great  detail- 
forbids  the  Avenels  to  keep  any  domestic  animals 
oji  the  lands,  or  in  the  pursuit  of  game  to  break 
down  fences  or  injure  standing  corn  or  cattle.  On 
the  other  hand  the  Monks  are  to  leave  all  Hart  and 
Roe,  Wild  Boar,  etc.,  and  other  game  to  the  Superior, 
whilst  a  curious  clause  reveals  the  value  then 
attached  to  the  sources  whence  Hawks  could  be  got 
for  the  favourite  pastime  of  hawking.  The  Monks 
were  not  to  cut  down  any  tree  on  which  Hawks  had 
nests,  nor  were  they  to  cut  any  such  tree  until  the 
intention  of  the  Hawks  had  been  clearly  ascer- 
tained, that  they  would  not  return  in  the  year 
following.  This  clause  included  not  only  Falcons, 
but  Sparrow  Hawks.1 

This  document  is  of  some  interest  in  several 
ways.  More  than  one  of  our  historians  have  observed 
that  we  hear  no  complaint  in  Scotland  of  any  special 
Forest  laws,  such  as  constituted  so  great  a  grievance 
in  England  during  the  early  Norman  Kings.  And 
this  is  true.  There  were  no  such  savage  penalties 
attached  to  the  killing  of  Deer — nor  is  there  any 
notice  of  districts  of  country  once  settled  and  then 

1  National  Manuscripts  of  Scotland,  Part  i.  No.  XLIX. 


G8  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

cleared  for  the  purposes  of  Forest.  In  this  document 
we  see  that  without  any  special  legislation,  but  only 
as  a  natural  and  usual  incident  of  property  in 
districts  which  were  naturally  covered  with  woods 
and  real  forests,  the  chase  was  valued  as  a  pursuit, 
and  game  as  a  means  of  sustenance,  and  that  special 
bargains  were  made  in  regard  to  it.  On  the  other 
hand,  we  see  that  it  was  considered  reasonable  that 
mere  leases  or  grants  of  game  should  not  interfere 
with  the  increase  of  tillage  or  the  necessary  enclosure 
of  land  for  cultivation.  This  is  made  still  more  strik- 
ingly apparent  by  a  Charter  given  to  the  Abbey  of 
Melros  by  Walter  the  Steward  of  Scotland  in  the 
Reign  of  Alexander  n.,  in  respect  to  their  powers 
of  pasturage  and  of  improvement  in  the  Forest  of 
Ayr.  In  this  document  it  is  especially  explained 
and  declared  that  the  Forest  rights  retained  by  the 
Superior  were  not  to  limit  or  restrict  the  Abbey  in 
respect  to  the  number  of  cattle  they  might  find  it 
possible  to  support  upon  the  land,  nor  in  respect 
to  the  arable  cultivation  of  any  part  of  them.1 

But  the  greatest  interest  of  all  attaching  to 
these  documents  is  the  evidence  they  afford  of  the 
tendency  of  all  Charters  and  of  all  written  agree- 
ments in  that  age  to  make  the  rights  of  parties  clear, 
fixed,  and  definite.  It  is  impossible  to  exaggerate 
the  importance  of  this  element  at  that  time — all 
the  more  because  the  forms  in  which  it  appears  are 
not  mere  technical  forms  or  the  work  of  skilled 
lawyers.  They  are  of  extreme  simplicity,  but  at  the 

1  National  Manuscripts  of  Scotland,  Part  i.  No.  LIII. 


THE  AGE  OF  CHARTERS.  69 

same  time  of  extreme  directness.  The  detail  about 
the  Hawks'  nests  may  seem  childish  to  us  now. 
But  nothing  could  better  illustrate  the  spirit  in 
which  the  respective  parties  were  to  act  towards 
each  other  in  the  exercise  of  rights  which  might 
conflict.  And  be  it  observed,  all  this  was  the  mere 
interpretation  of  a  contract  which  the  Avenels  had 
voluntarily  entered  into  by  a  Charter  with  the  Abbey, 
so  that  the  edict  of  the  King  was  not  in  the  nature 
of  a  law,  but  in  the  nature  of  a  judgment  or  decision. 
But  it  was  a  decision  governed  by  the  great  principle 
which  is  at  the  root  of  all  civilised  jurisprudence 
that  men  must  be  kept  to  the  fulfilment  of  their 
engagements,  and  that  in  the  interpretation  of  these, 
both  rights  and  obligations  must  be  at  once  strictly, 
and  at  the  same  time  equitably,  construed. 

This  was  a  great  period  in  the  history  of  Scotland 
—the  whole  of  this  Thirteenth  Century  to  the  death 
of  Alexander  m.,  the  last  of  the  direct  descendants 
of  Malcolm  Canmore  and  Queen  Margaret — the 
last  of  our  Kings  who  represented  the  old  Celtic 
Monarchy  in  the  male  line.  It  was  a  manly,  and  a 
simple  time — how  manly,  was  soon  to  be  evinced 
in  the  great  struggle  with  the  two  Edwards  of 
England — how  simple,  is  evinced  by  all  of  the  few 
documents  of  the  time  which  have  survived,  and  by 
the  incidental  circumstances  which  so  often  come 
out  in  them.  And  in  nothing  was  it  nobler,  or 
more  fruitful  in  good  to  come,  than  in  this  instinc- 
tive desire  to  record,  and  to  fix,  and  to  place  under 
the  highest  sanctions,  human  and  divine,  all  the  old 


70  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

notions  of  right  and  wrong — all  the  old  traditions  of 
inherited  authority  and  of  recognised  possession, 
which  had  been  growing  up  for  centuries,  which 
had  become  the  basis  of  society,  and  which  needed 
only  to  be  consciously  recognised,  and  duly  em- 
bodied in  Instruments  of  legal  force.  It  seems 
strange  and  almost  incongruous  to  us,  but  it  did  not 
seem  at  all  incongruous  to  those  old  Kings  that 
they  should  take  a  personal  part  in  the  minutest 
detail  of  this  great  process  of  record  and  of  organi- 
sation. In  their  own  persons — on  foot  or  on  horse- 
back— it  was  common  for  them  to  fix  the  boundaries 
of  the  lands  they  gave  to  the  Church,  by  going 
round  the  marches,  and  once  across  the  area  thus 
defined.  It  takes  us  back  pleasantly  to  those  early 
days  when  we  read  King  David  saying  to  the 
Monks  of  Melros  that  he 'assures  to  them  certain 
lands  "as  I  myself,  and  Henry  my  son,  and  the 
Abbot  Richard  of  the  same  church,  have  gone 
through,  and  gone  round  them,  on  Friday  the 
morrow  of  the  ascension  of  our  Lord,  the  second 
year,  to  wit,  after  that  Stephen  King  of  England 
was  taken."  l  And  this  personal  perambulation  of 
the  marches  is  in  several  cases  recorded  in  the 
Charters.  Causes  were  heard  by  the  King  in  per- 
son ;  and  in  the  dispute  so  equitably  settled  between 
the  Lords  of  Eskdale  and  the  Monks  of  that  famous 
Abbey,  which  was  so  dear  to,  and  so  favoured  by 
the  Kings  of  that  dynasty,  we  can  well  imagine 
the  mixture  of  grave  and  gay — the  sense  of  equity 

1  National  Manuscripts  of  Scotland,  Part  i.  No.  XVII. 


THE  AGE  OF  CHARTERS.  71 

and  the  sense  of  fun — with  which  Alexander  11. 
must  have  directed  the  compromise  about  the 
manifest  intentions  of  Falcons  and  of  Sparrow 
Hawks,  in  leaving  or  in  keeping  to  their  old  nest- 
ing trees. 

It  was  in  the  midst  of  this  rapid  process  of 
record,  and  of  consolidation,  and  of  progress,  that 
Scotland  suffered  the  most  terrible  calamities  that 
can  befall  a  nation — the  extinction  of  an  honoured 
Dynasty, — a  disputed  succession, — desolating  in- 
vasions from  a  foreign  army, — and  lastly,  a  long 
and  desperate  struggle  for  national  independence. 
Counting  from  the  death  of  Alexander  in.  to  the 
Battle  of  Bannockburn,  this  unsettled  and  bloody 
time  lasted  for  twenty-eight  years,  and  if  we 
count  to  the  final  Treaty  acknowledging  the 
Independence  of  Scotland,  it  lasted  forty-two 
years — from  1286  to  1328.  As  a  matter  of  course 
there  were  immense  changes  made  in  the  holders 
of  landed  property  in  consequence  of  the  contest. 
Barons,  and  Knights,  and  Chiefs  who  in  the  dif- 
ferent divisions,  and  among  the  still  differing  races 
of  the  Monarchy,  had  been  loyal  to  the  cause  of 
national  unity  and  independence — these  had  to  be 
rewarded.  Those,  on  the  other  hand,  who  were 
disloyal  to  that  cause,  had  to  take  the  conse- 
quences of  their  defeat.  It  is  not  too  much  to  say 
that  a  very  large  part  of  the  land  of  Scotland 
changed  hands,  whilst  another  large  part  remained 
indeed  in  the  same  families  in  which  they  had  been 
for  centuries,  but  were  entered  for  the  first  time  in 


72  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

the  great  Charter  Roll,  which  recorded  under  a  new 
and  a  glorious  sanction  the  ancient  inheritances 
which  had  been  won  by  services  too  old  and  too 
continuous  to  be  recorded,  but  which  perhaps  had 
been  not  less  important  to  an  earlier  condition  of 
society. 

This  comes  out  very  clearly  in  the  earliest 
extant  Charters  connected  with  my  own  family. 
King  Robert  the  Bruce  was  not  likely  to  forget  the 
loyal  Knight  of  Lochow  who  had  been  his  close 
companion  throughout  his  memorable  adventures 
between  1306  when  he  assumed  the  Crown,  and  the 
great  battle  in  which  he  vindicated  that  assumption 
before  the  world.  The  King  had  good  reason  to 
remember  Lochow.  It  was  in  the  precipitous  pass 
at  the  foot  of  Ben  Cruachan,  where  that  fine  moun- 
tain falls  into  the  gorge  through  which  the  Lake 
finds  its  outlet  to  the  Sea,  that  he  had  one  of  the 
fiercest  and  most  dangerous  contests  of  the  war. 
The  Island  and  Western  Clans  under  the  Celtic 
Chiefs,  descended  from  Somerled,  had  with  their 
characteristic  traditions  from  the  Sea,  occupied  the 
Lake1  with  galleys,  and  the  steep  slopes  of  Cruachan 
with  men.  Nothing  but  personal  strength  and 
courage,  seconded  by  the  only  strategy  which  such 
ground  admitted  of,  brought  the  little  band  of 
Bruce  victoriously  through  that  encounter  ;  and  so 
desperate  was  it  at  one  moment,  that  the  King  was 

1  The  narrative  commonly  runs  that  the  Galleys  of  the  Islanders 
were  on  the  Sea.  But  the  Sea  is  several  miles  from  the  site  of  the  Battle. 
No  doubt  the  Lord  of  Lome  had  dragged  up  his  Galleys  from  Loch  Etive, 
and  launched  them  on  Lochow,  close  under  the  Pass  to  be  defended. 


THE  AGE  OF  CHARTERS.  73 

as  nearly  as  possible  overpowered, — his  plaid  was 
torn  from  his  person — the  brooch  by  which  it  was 
fastened  was  carried  off,  and  remains  to  this  day  in 
the  possession  of  the  gallant  Chief  of  the  Clan 
Macdougall  in  the  Castle  of  Dunolly.  It  was  not, 
however,  till  after  the  death  of  his  brave  companion 
in  arms,  Sir  Niel  Campbell,  who  did  not  long  sur- 
vive the  Battle  of  Bannockburn,  dying  in  1315, 
that  the  family  seems  to  have  cared  to  have  that 
new  form  of  title  which  consisted  in  a  bit  of  parch- 
ment. The  King  had  given  to  Sir  Niel  his  own 
sister,  Lady  Marjory,  in  marriage,  and  although  the 
young  Knight  who  succeeded  to  the  Barony  of 
Lochow  was  not  his  own  nephew,  he  was  the  eldest 
son  of  his  old  friend,  and  the  stepson  of  his  sister. 
Probably  it  was  a  pleasure  to  the  King,  almost  as 
much  as  a  favour  to  this  brave  and  impetuous  youth, 
to  give  a  writing  under  his  own  hand,  "  confirming" 
those  ancient  possessions  in  the  West  which  had 
been  so  long  held,  and  so  bravely  risked  in  his 
cause.  In  this  case  the  words  must  have  been 
more  than  form  which  were  addressed  by  "  Robert, 
by  the  grace  of  God,  King  of  the  Scots,  to  all  good 
men  of  his  whole  land,  greeting;"  on  behalf  of  his 
"  beloved  and  faithful  Colin,  son  of  Niel  Cambel, 
Knight "- —confirming  to  him  "the  whole  land  of 
Lochow,  in  one  free  Barony,  by  all  its  righteous 
metes  and  marches,  in  wood  and  plain,  meadows  and 
pastures,  muirs  and  marshes,  petaries,  ways,  paths, 
and  waters,  stanks,  fish-ponds,  and  mills,  and  with 
the  patronage  of  the  churches,  in  huntings  and 


74  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

hawkings,  and  in  all  its  other   liberties,  privileges, 
and  just  pertinents,  as  well  named,  as  not  named." 

But  beyond  necessary  inference,  the  simple 
brevity  of  these  old  Charters  leaves  much  to  be 
understood,  and  it  is  sometimes  only  by  pure  acci- 
dent and  by  incidental  allusions  in  later  Instru- 
ments that  we  find  out  how  purely  they  were  very 
often  Instruments  of  mere  record  and  recognition 
in  respect  to  facts,  to  rights,  and  to  powers  which 
were  then  of  very  ancient  standing.  This  comes 
out  very  strikingly  in  a  later  Charter  granted 
by  David  n.,  son  and  successor1  of  Robert  the 
Bruce,  to  another  member  of  the  Cambel  family 
in  1368.  In  this  document  we  have  an  express 
reference  to  rights  which  had  been  acquired  by  the 
Celtic  Chiefs,  under  their  own  system,  and  by  their 
own  pre-eminence  among  their  own  people  :  for  this 
Charter  confirms  and  secures  to  Gillespie  (Archi- 
bald) Cambel  "all  the  liberties  and  customs"  which 
had  belonged  to  a  progenitor,  who  is  designated 
by  his  Celtic  patronymic  of  Duncan  Mac  Duine. 
Now  this  Duncan  appears  to  have  flourished  about 
150  years  earlier,  in  the  reign  of  Alexander  n.. 
and  he  is  expressly  referred  to  as  having  been 
then  already  in  possession  of  all  the  "  liberties 
and  customs "  of  the  Barony  of  Lochow,  as  well 
as  of  others  not  specified.  But  this  is  not  all- 
it  is  not  even  the  most  significant  part  of  the  re- 
ference. For  in  the  use,  in  a  formal  Charter,  of 
the  name  "  Mac  Duine,"  we  have  clear  historic 
evidence  of  the  truth  of  much  older  traditions. 


THE  AGE  OF  CHARTERS.  75 

We  are  carried  back  to  times  when  this  patronymic 
of  Mac  Duine  must  have  arisen  among  the  Dalriadic 
Celts  (who  were  a  conquering  and  colonising  colony 
from  the  "  Scots  "  of  Ireland)  in  the  period  between 
the  Fifth  and  the  Seventh  Centuries.1 

From  the  War  of  Independence  and  the  death 
of  King  Robert  the  Bruce,  in  1329,  we  are  in  the 
full  light  of  history,  and  are  in  possession  of  an 
uninterrupted  series  of  Charters  for  the  space  of 
500  years  down  to  our  own  time.  There  is  a  perfect 
continuity  of  character,  and  a  complete  universality 
of  application  to  every  part  and  Province  of  the 
Kingdom.  There  was  no  distinction,  whatever  be- 
tween the  Lowlands  and  the  Highlands.  The  only 
Celtic  race  which  in  the  Fourteenth  Century  was  still 
noticed  as  representing  a  separate  portion  of  the 
Kingdom,  was  the  Galwegians — the  people  of  the 
south-western  country  of  Galloway.  The  Gaelic 
population  of  the  Highlands  were  not  only  included 
in  the  "  Scots,"  but  were  the  first  owners  of  the  name. 
The  earliest  and  the  most  despotic  of  all  the  forms 
of  native  Feudalism  had  been  developed  and  had 
long  been  firmly  established  among  them.  Even 
the  more  civilised  form  of  written  Charters  had 
been  adopted  by  the  more  civilised  Lords  of  the 
Isles,  and  the  Mackenzies,  Macleans,  and  Mackin- 
toshes had  accepted  and  submitted  to  the  new 
order  of  things  which  confirmed,  but  at  the  same 
time  regulated  their  powers.2  Accordingly  there 

1  Celtic  Scotland,  vol.  iii.  p.  79. 

2  Burton's  Hist,  of  Scot.,  vol.  iii.  p.  95. 


76  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

is  not  the  smallest  difference  between  the  Charters 
granted  in  different  parts  of  the  Kingdom  from  the 
Tweed  to  the  Thurso,  and  from  the  mountains  of 
Applecross  to  the  headlands  of  Buchan.  And  no 
wonder — for  everywhere  almost  the  Celts  had  been 
the  original  population,  arid  the  very  names  of  the 
lands  disposed  of  were  often  as  purely  Celtic  in  the 
Lowlands  as  they  could  be  in  any  part  of  the  High- 
lands. Many  of  these  have  long  ago  entirely  disap- 
peared, and  it  is  not  without  surprise  that  in  many 
of  the  earliest  Charters  of  lands  in  districts  which 
have  long  been  purely  Teutonic,  we  meet  with  crowds 
of  names  as  purely  Gaelic  as  the  existing  names  in 
the  centre  of  the  counties  of  Argyll  and  Inverness. 

We  see  the  same  absolute  unconsciousness  on 
the  part  of  the  Sovereigns  that  they  were  doing  or 
giving  anything  that  was  new  when  they  gave 
grants  of  land  anywhere — in  any  and  in  every 
portion  of  their  Kingdom.  The  whole  Valley  of 
Douglas,  sixteen  miles  in  length  from  Tinto  to 
Cairntable,  was  conveyed  to  the  good  and  brave  Sir 
James  Douglas  by  Robert  the  Bruce  in  a  Charter 
in  the  briefest  form.  The  wild  coasts  and  mountains 
of  Gareloch  on  the  mainland  opposite  to  Skye  had 
been  already  disposed  of  in  precisely  a  similar  form 
by  Bruce's  predecessor,  Alexander  in.,  in  1272,  to  a 
Celtic  Chief,  who,  again,  had  previously  held  under 
a  Charter  from  the  Celtic  Earl  of  Iloss.  And  when, 
a  little  later,  Charters  became  more  extended  in 
form,  and  purported  to  specify  a  little  more  expressly 
that  which  they  conveyed,  it  almost  seems  as  if  all 


THE  AGE  OF  CHARTERS.  77 

the  resources  of  language  were  exhausted  to 
enumerate  and  include  complete  rights  of  possession 
and  disposal,  of  every  kind  and  degree,  over  every 
kind  and  description  of  land  embraced  within  the 
ancient  and  well-known  boundaries  of  the  Lordship 
or  of  the  estate.  This  came  as  a  matter  of  course 
everywhere,  but  perhaps  in  the  very  nature  of 
things  it  would  have  been  less  possible  even  to  con- 
ceive of  any  exception  as  regards  what  is  called 
"waste"  land  in  the  Highlands  than  in  the  Low- 
lands. Nowhere,  indeed,  in  these  Islands,  have 
there  ever  been  lands  in  the  state  of  "Prairie" — that 
is  to  say,  great  areas  of  virgin  soil,  unencumbered 
with  wood,  and  ready  for  the  plough,  without  any 
process  of  reclamation.  Everywhere  in  Scotland  the 
largest  part  of  the  country  was  covered  with  natural 
forests,  and  with  dense  scrubby  woods,  which  are 
even  more  difficult  to  clear  and  to  eradicate ;  whilst 
elsewhere  little  but  moors  and  bogs  varied  the  sur- 
face under  conditions  even  more  intractable  for 
agricultural  operations.  But  in  the  Highlands,  if 
Charters  had  given  nothing  under  the  full  rights  of 
individual  Ownership,  except  the  cultivated  or  even 
the  cultivable  land,  there  would  have  been  nothing 
given  at  all.  That  which  in  England  would  have 
gone  under  the  name  of  waste  was  practically 
the  whole  surface  of  the  country.  Accordingly, 
in  no  Instrument  of  the  Middle  Ages  is  there 
the  smallest  consciousness  even  shown  that  such 
distinctions  could  be  drawn,  or  that  such  a  question 
could  emerge. 


78  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

On  the  other  hand  there  arose,  as  I  have  already 
shown,  an  instinctive  desire  to  record  and  to  specify, 
and  to  define,  all  that  by  immemorial  usage,  and  the 
habits  and  conditions  of  life  in  that  age,  had  been 
held,  used,  and  enjoyed,  as  of  the  essence  of  the 
Ownership  of  land.  "  With  all  its  just  pertinents  " 
are  the  simple  words  usually  added  in  the  earliest 
Charters  to  the  name  of  the  property  conveyed. 
And  when  these  "just  pertinents"  came  to  be  set 
forth  at  length,  and  separately  named,  they  are 
always  so  named,  not  as  novelties,  but  expressly  as 
the  items  of  ancient  usage.  The  most  elaborate 
enumeration  I  have  observed  is  one  contained  in  a 
Charter  of  Confirmation  granted  by  King  Robert  the 
Bruce  to  Malcolm  Earl  of  Lennox,  and  dated  July 
14,  132 1.1  But  this  Malcolm  was  the  fourth  Earl 
who  had  been  then  in  possession  of  that  great  Earl- 
dom, the  larger  part  of  which  was  at  that  time  purely 
Celtic,  and  the  Charter,  as  usual,  refers  to  it  and  to 
its  "just  pertinents,"  as  enjoyed  from  a  former  age. 
The  enumeration  is  only  remarkable  as  containing 
such  curious  expressions  as  "  infangandthefe  and  out- 
fangandthefe,"  and  as  including  such  details  as  the 
"  Eyries  of  Birds,"  along  with  the  more  substantial 
advantages  then  arising  from  the  escheats  and  fines 
attaching  to  feudal  dues  and  to  the  Baronial  Courts 
in  the  exercise  of  criminal  jurisdiction.  To  the  sub- 
ject of  the  Courts  of  Heritable  Jurisdiction  I  shall 
return  in  a  later  Chapter,  only  observing  here  that 
in  this  as  in  other  things  the  early  Charters  were 

1  Book  of  Lennox,  by  Dr.  W.  Fraser,  vol.  ii.  pp.  19-21. 


THE  AGE  OF  CHARTERS.  79 

only  granting  under  definite  and  legal  sanction  the 
irregular  but  very  ancient  powers  of  jurisdiction 
which  were  inseparable  from  the  immense  and 
supreme  authority  exercised  by  early  Chiefs  and 
Leaders  among  all  the  Aryan  races. 

There  is,  indeed,  one  remarkable  addition  to  the 
list  of  enumerated  items,  which  appears  to  have 
been  first  inserted  in  the  later  years  of  King  Robert 
the  Bruce.  That  addition  consists  in  such  words  as 
these  (for  there  is  some  variation),  "  with  its  tenants 
and  tenandries,  and  service  of  free  tenants,"  to  which 
a^ain  are  added,  in  some  cases,  such  further  words 

O  '  ' 

as  these,  "  with  all  the  native  men  of  the  same," 
that  is  the  Bondmen.  Before  the  close  of  the 
century  in  which  King  Robert  the  Bruce  died, 
about  1390,  this  last  item  dropped  out  of  the 
account.  The  Bondmen  had  either  disappeared,  or 
had  become  so  unimportant  as  not  to  be  worth 
separate  mention.  On  the  other  hand,  "tenandries, 
tenants,  and  services  of  free  tenants,"  survived 
through  centuries,  becoming  the  regular  conven- 
tional phrase  under  which  all  the  holdings,  farms, 
and  revenues  of  an  estate  were  included,  whether 
these  revenues  were  derived  from  sub-feus,  or  from 
leases,  or  from  yearly  holdings,  or  from  other  forms  of 
tenure  which  are  now  lost  or  are  indistinguishable. 
But  through  all  mere  developments  of  wording, 
and  redundancies  of  expression,  that  which  is  of 
most  interest  in  all  those  Charters  is  the  undying 
witness  which  they  bear  to  the  one  original  idea 
of  abolishing  all  the  old  indefinite  and  arbitrary 


80  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

exactions  of  Celtic  Feudalism,  as  it  had  become 
established  everywhere  before  the  days  of  written 
documents.  Certain  definite  amounts  of  military 
service  were  commonly  provided  for  in  the  earlier 
centuries  ;  but  this  provision  is  always  followed  by 
words  declaring  it  to  be  in  full  satisfaction  and  sub- 
stitution "for  every  other  service  or  custom  or 
exaction."  Among  the  instruments  published  in 
The  Book  of  Grant  there  is  one  highly  illustrative 
of  the  fear  which  had  arisen  of  demands  or  dues  of 
this  nature  which  were  indefinite.  A  certain  Knight, 
Sir  Gilbert  of  Glenkerny,  wrho  held  his  lands  by 
Charter  from  the  Earldom  of  Strathearn,  had  been 
induced  by  friendship  or  political  sympathy  to  serve 
personally,  and  with  his  following  in  the  wars  of 
the  disputed  succession,  under  Malise,  who  then 
held  that  Earldom.  But  this  service  had  not  been 
due  under  his  Charter.  In  June  1306,  therefore, 
fearing  that  his  actual  service  might  be  construed 
as  having  been  feudal  service,  he  procured  from  the 
Earl  Malise  a  Deed  of  acknowledgment  as  to  the 
true  nature  of  the  assistance  he  had  rendered.  In 
this  new  Charter  Earl  Malise  formally  declares  that 
neither  he  nor  any  of  his  heirs  should  ever  claim 
or  pretend  that  such  service  should  be  pleaded  as  con- 
suetudinary, or  should  be  quoted  as  affecting  in  any 
way  the  original  conditions  of  Sir  Gilbert's  tenure.1 
But  as  the  great  Earldoms  and  Baronies  of  the 
Thirteenth  and  Fourteenth  Centuries  became  broken 
up  into  smaller  Estates,  the  practice  became  general 

1  Book  of  Grant,  vol.  iii.  p.  8. 


THE  AGE  OF  CHARTERS.  81 

to  commute  all  military  services  into  fixed  amounts 
of  money.     It  was  an  inevitable  result  of  advancing 
civilisation   and   of  settled   government    that   the 
importance  of  many  civil  obligations  became  much 
more  prominent  than   those   connected   with  per- 
petual fighting.     Society  ceased  to  think  continu- 
ally of  bows  and  arrows  and  of  coats  of  mail.     It 
wished  to   enjoy   life,   and   not   merely  to    defend 
or  to  secure  it.     In  connection  with  this   change 
a  new  form  of  expression  and  new   conditions  of 
tenure  came  into  use.     Lands  held  under  Charter 
for   a   fixed   annual   sum   of  Feu-duty    were    said 
to  be  given  and   held  "  in   Feu-farm" — that   is  to 
say,   the    tenure   was   that   of   Feu,    or   Fee,    but 
subject  to  an  annual  payment,  which  came  under 
the   old    designation    of    "  Ferm " — or  Kent,    from 
the  Latin  "  Firma." *     In  a  very  large  number  of 
cases,  soon  becoming  the  great  majority,  the  annual 
payment  being  measured  in  a  fixed  amount  of  pro- 
duce, either  became  purely  nominal,  or  at  least  was 
very  small ;    whilst  still   later   the   fashion    set  in 
of  making  the  grants  virtually  free — with  nothing 
left  of  the  ancient  Servitudes  except  some  Token, 
often  highly  poetic  and  even  sentimental.     It  was 
frequently  specified  that  these  Tokens  were  to  be 
offered  at  and  on  the  altar  of  some  Church  dedicated 
to  a  Patron  Saint,  or  on  some  one  or  other  of  the 
great  festivals  of  the  Catholic  Church.     The  nature 
of  these  Tokens  is  sometimes  very  whimsical — such 

1  Skeat'a   Etym.  Diet.     In  Low  Latin   the  word  means  tribute.     A 
Saxon  word  "  feorme  "  seems  to  have  the  same  meaning. 

VOL.  I.  F 


82  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

as  a  few  pounds  of  Wax,  or  a  little  Cumin.  Some- 
times they  are  purely  emblematic — as  in  the  case  of 
an  Arrow.  Sometimes  they  breathe  that  common 
love  of  Nature  which  ever  increases  with  the  advance 
of  civilisation.  The  presentation  of  a  Red  Rose  is  a 
common  Token  ;  whilst  in  one  Charter  we  have  the 
beautiful  expression  of  a  tender  reverence  in  the 
reservation  of  a  Chaplet  of  Roses,  not  red,  but 
white,  which  was  to  be  presented  to  the  Superior 
every  year  on  the  Feast  of  St.  John  the  Baptist.1 

It  may  perhaps  surprise  some  persons  to  be  told 
that  in  Scotland  at  least  we  are  still  in  "  The  Age 
of  Charters."  Not  only  are  almost  all  Estates  held 
on  tenures  dating  back  to  Charters  of  the  oldest 
form,  but  new  Charters  are  being  granted  every 
day  which,  both  in  form  and  in  substance,  are  the 
lineal  descendants  and  the  living  representatives  of 
the  Instruments  which  were  executed  eight  hundred 
years  ago.  They  constitute  the  favourite  tenure  of 
all  land  acquired  for  the  purposes  of  Building  and 
of  Residence.  Most  of  the  Towns  in  Scotland,  and 
almost  all  the  rich  and  comfortable  villas  which 
spangle  the  shores  and  estuaries  of  our  great  rivers, 
are  built  upon  the  tenure  conveyed  in  Feu-Charters. 
In  these  Instruments  the  continuity  of  phrases  from 
the  earliest  times  is  remarkable.  The  ceremonies 
once  necessary  for  the  giving  of  Possession — the 
symbolical  acts  such  as  handing  over  actual  bits 
and  portions  of  the  soil — all  these  have  been  abol- 
ished— although  some  of  them  survived  until  a  few 
But  the  fundamental  principles,  and 

1   Book  of  Lenrws,  vol.  ii.  p.  G4. 


THE  AGE  OF  CHARTERS.  83 

some  of  the  dominant  expressions,  are  the  same. 
The  Proprietor  hands  over  to  the  new  Owner — the 
Vassal  in  ancient  and  still  legal  language, — the 
Feuar  in  modern  parlance — the  designated  area  of 
land  "in  feu-farm,  fee,  and  heritage  for  ever,"  for 
payment  of  the  Feu-duty,  and  for  performance  of 
the  other  stipulations  which  follow.  Next,  the 
Proprietor  binds  himself  to  free  and  relieve  his  new 
Feuar  of  all  feudal  dues  and  casualties  which  may 
be  payable  to  the  Over-Lord,  or  the  Superior  from 
whom  the  ultimate  Title  may  have  come — and  this 
"  for  all  time  coming."  Lastly — and  this  is  very 
curious — the  Proprietor,  who  now  becomes  only  the 
Superior  of  the  Feuar,  binds  himself  to  accept  one 
fixed  payment  at  some  certain  definite  interval  of 
years,  in  lieu  of  all  the  old  customary  feudal  fines 
and  "casualties."  This  fixed  payment  generally 
consists  in  a  double  Feu- duty  for  one  year,  at  inter- 
vals of  from  nineteen  to  twenty-five  years.  The 
doctrine  of  the  law  is  that  every  Feu  so  granted 
constitutes  full  and  free  Ownership,  and  that  all 
restrictions  and  restraints  upon  it  must  be  very 
clearly  and  distinctly  provided  for  in  the  written 
words  of  the  Charter.  Moreover,  there  is  a  pre- 
sumption against  even  express  restrictions  where 
these  have  not  been  continuously  and  consistently 
enforced.  Some  decisions  adverse  to  the  enforce- 
ment of  certain  restrictions  on  Feuars  in  particular 
cases,  have  been  hailed  by  ignorant  writers  as  happy 
limitations  upon  over-strained  rights  of  Property. 
But  those  decisions  have  all  been,  on  the  contrary, 
founded  on  the  very  opposite  doctrine  of  the 


84  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

rights  of  Ownership  construed  in  the  very  highest 
sense.  It  is  the  Feuar  who  has  now  become  the 
possessor  and  representative  of  these  rights  :  and 
the  doctrine  of  the  Courts  is  that  no  restraint  upon 
them  can  be  allowed  which  does  not  rest  on  the 
clearest  evidence  of  deliberate  contract,  and  of 
acknowledged  obligation.  In  this  as  in  other  mat- 
ters the  spirit  of  Judicial  interpretation  in  enforcing 
the  strictest  rights  of  property,  has  laid  the  best 
and  the  only  secure  foundation  of  popular  rights. 
The  number  of  Feuars  has  increased  enormously. 
Popular  sympathies  are  with  them,  and  the  Courts 
of  Law,  when  insisting  on  the  completeness  of  their 
Ownership,  subject  only  to  stipulations  the  most 
definite  and  express,  have  been  insisting  on  the  same 
principle  of  unrestricted  and  undivided  Ownership 
which  also  ruled  the  case  of  the  largest  Baronies  and 
Earldoms.  Thus  the  most  ancient  presumptions  of 
law  which  have  affected  great  Estates  for  many  cen- 
turies have  equally  in  our  own  days  established  the 
most  popular  of  all  the  tenures  of  land  in  Scotland. 
Not  only  are  feus  taken  more  and  more  largely  by 
all  ranks  and  classes,  but  the  Feu-duties  which  they 
pay  for  the  "  Fee-farm  "  are  among  the  most  favourite 
investments  for  various  Charitable  and  Public  Funds. 
Thus  the  fundamental  principles  of  the  first  written 
Feudal  Charters  have  not  only  lain  at  the  root  of  the 
civilisation  of  Scotland  for  800  years,  but  have  lent 
themselves  without  one  break  in  a  perfect  continuity 
to  the  latest  developments  of  modern  life. 

It  is    not   unimportant   to  remember  that    the 


THE  AGE  OF  CHARTERS.  85 

early  age  of  Charters  for  the  tenure  of  land  was  also 
the  early  age  of  Charters  for  the  tenure  of  Muni- 
cipal Privilege.  Moreover  there  is  the  same  clear 
evidence  in  this  case  as  in  the  other,  that  the  first 
grants  of  Municipal  Privilege  were  acts  of  confirma- 
tion and  of  record  rather  than  acts  of  original  institu- 
tion. There  are  references  to  Burghal  communities 
of  a  much  earlier  date,  and  it  has  even  been  con- 
tended that  in  the  southern  parts  of  the  Kingdom 
some  of  them  had  survived  from  Roman  times.  It 
is  at  least  certain  that  through  the  same  invaluable 
channel  of  the  Latin  Church  the  memory  and  the 
tradition  of  them  had  never  been  extinguished. 
When,  therefore,  the  Kings  of  the  Canmore  dynasty 
gave  Charters  to  some  Burghs  in  the  most  Anglo 
Saxon  parts  of  Scotland,  there  are  the  same  express 
references  to  older  times  which  in  the  case  of  land 
Charters  refer  us  back  to  liberties  and  possessions 
which  had  been  of  old.  There  are  indeed  some 
instances  in  which  new  Towns  or  favourite  villages 
were  for  the  first  time  erected  into  Royal  Burghs ; 
but  the  date  of  existing  Charters  is  no  indication 
in  itself  of  such  an  origin.  Thus  in  the  case  of 
Dundee,  one  of  the  most  important  of  the  old  Scotch 
Burghs,  the  Charter  granted  by  Robert  the  Bruce 
in  1327  was  the  result  of  a  special  inquiry1  which 
had  been  instituted  by  that  Sovereign  in  1325,  into 
the  rights  and  liberties  of  the  Burgh  in  the  times 
of  his  predecessors  on  the  throne  of  Scotland,  and 
these  rights  and  liberties  having  been  ascertained, 

1  Charters,  etc.,  of  Dundee,  pji.  8-9. 


86  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

were  confirmed,  and  were  definitely  recorded  in  the 
new  form  of  Instrument  which  had  risen  into  the 
highest  rank  of  legal  value. 

There  is,  indeed,  connected  with  this  subject,  one 
very  curious  indication  of  the  tendency  of  that  age 
towards  the  making  of  clear  definitions  in  respect  to 
rights  which  had  previously  rested  on  usage  only. 
This  indication  is  afforded  in  one  of  the  earliest  ex- 
amples which  have  come  down  to  us  of  legislation  in 
Scotland.  It  is  a  short  Act  passed  in  the  reign  of 
William  the  Lion,  in  favour  of  what  was  then 
called  the  "  freedom  "  or  the  "  liberty  "  of  Burghs. 
Popular  "  freedom  "  did  not  then  consist  in  what  we 
understand  by  the  word  now.  On  the  contrary,  a 
"  liberty"  then  meant  always,  as  applied  to  Burghs, 
some  exclusive  privilege  in  the  form  of  a  trade- 
monopoly.  It  cannot  be  too  often  repeated  that  the 
system  which  we  now  call  Protection  was  the  system 
on  which  all  our  great  trading  communities  were 
founded,  and  in  which  they  were  brought  up  and 
nursed.  It  was  not  the  class  of  landowners,  but 
the  class  of  traders  and  mechanics,  who  invented 
the  close  restrictions  upon  the  freedom  of  industry 
which  were  for  centuries  considered  the  very 
foundation  of  all  possible  prosperity  in  Burghs. 
It  would,  indeed,  be  more  accurate  to  say  that 
they  were  not  invented  by  any  one,  or  by  any 
section  of  the  community,  for  they  were,  like  all 
the  other  laws  of  a  rising  people,  in  harmony 
with  the  general  sentiments  and  instincts  of  the 
time.  One  of  the  earliest  of  those  restrictions  was 


THE  AGE  OF  CHARTERS.  87 

upon  free  trade  in  wool  and  in  skins.  Even  in 
those  early  centuries  the  trade  in  wool  had  become 
the  most  valuable  of  all  domestic  industries ;  and 
consequently  one  of  the  earliest  "  liberties  "  accorded 
to  the  Burgesses  of  chartered  Towns  was  the  right 
of  prohibiting  all  men  but  themselves  from  engaging 
in  this  trade  within  their  own  boundaries.  And 
this  did  not  mean  the  boundaries  of  their  own  Town. 
It  meant  the  boundaries  of  some  large  territory 
lying  round  about,  which  for  this  purpose  was 
annexed  to  the  Burgh  as  the  area  over  which  the 
monopoly  was  to  prevail.  It  is  in  connection  with 
this  idea  of  popular  "freedoms"  and  rights  that  we 
have  William  the  Lion  enacting1  in  his  Parliament 

o 

or  Great  Council  of  the  nation,  about  the  year  1214, 
that  all  the  landowners,  great  and  small,  clerical  or 
lay,  within  those  Burghal  areas  of  monopoly  should 
be  absolutely  subject  to  it,  to  such  an  extent  that 
they  were  not  to  be  free  to  dispose  otherwise  of  the 
most  valuable  produce  of  their  own  estates.  Nothing 
could  be  more  precise  than  this  record  and  defini- 
tion of  what  usage  appears  to  have  established  in 
connection  with  these  Burghal  "  freedoms."  "  No 
Prelate  nor  Churchman,  Earl,  Baron,  or  secular  per- 
son, shall  presume  to  buy  Wool,  Skins,  Hides,  or  such 
like  merchandise,  but  that  they  shall  sell  the  same 
to  merchants  of  Burghs  within  whose  shiredom  and 
liberty  the  owner  and  seller  of  such  merchandise 
does  dwell." :  In  the  case  of  the  Burgh  of  Dundee 
this  privilege  was  found  by  the  "  trusty  and  faithful 

1  Acta  Part.  Scot.,  vol.  i.  p.  61. 


88  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

men,"  to  whom  the  inquiry  was  committed  by  King 
Robert  i.,  to  have  extended  over  the  whole  "  Sheriff 
doin  of  Forfar,"  and  in  the  new  Charter  accordingly 
the  same  wide  boundaries  of  monopoly  are  expressly 
confirmed.1 

In  these  strange  and  almost  grotesque  provisions 
of  the  earliest  extant  laws  and  Charters  of  the  Scot- 
tish Monarchy,  in  favour  of  Trade  monopolies  in  the 
hands  of  Burghs,  we  have  a  very  clear  refutation 
of  that  most  vulgar  of  all  historical  errors  which 
attributes  the  doctrines  then  legally  established 
to  the  exclusive  and  selfish  interests  of  one  parti- 
cular class,  and  that  class  the  Owners  of  land. 
We  have,  indeed,  very  little  knowledge  in  detail  as 
to  how  the  Great  Councils  of  the  nation  were  then 
summoned,  or  how  they  were  composed  in  the  reign 
of  William  the  Lion.  In  all  probability  there  was 
but  little  formality  either  as  to  the  one  or  as  to  the 
other.  There  is  not  even  uniformity  in  the  few 
words  of  preamble  with  which  those  short  and 
simple  laws  were  passed.  They  are  enacted  some- 
times with  consent  "  of  Bishops,  Abbots,  Earls, 
Barons,  and  Thanes,  and  all  the  community  of  the 
Kynryk  "  (kingdom);  sometimes,  more  shortly,  "by 
counsel  of  his  Kynryk "  only — sometimes  "  by 
counsel  of  the  community."  But  that  which  we 
really  do  know  does  not  depend  on  these  archaic  pre 
fatory  forms.  It  depends  on  the  persistent  memory 
of  the  Scottish  people  that  this  was  the  happiest — 
the  formative  time — in  their  national  history — the 

1  Charters,  tic.,  of  Dundee.,  p.  10. 


THE  AGE  OF  CHARTERS.  89 

time  to  which  later  documents  all  referred  as  the 
highest  fountain  of  authority  and  of  legal  tradition — 
the  time  when  all  the  races  and  all  the  classes  of 
the  growing  nation  were  being  moulded  into  one 
government  and  one  people. 

The  very  absence  of  detailed  information  as  to 
the  manner  in  which  these  old  laws  were  enacted, 
speaks  volumes  as  to  their  real  nature  and  origin. 
They  were  the  mere  outward  expression  of  ideas  and 
opinions  which  had  long  been  universally  accepted. 
And  crude  and  rude  as  we  may  now  think  the  pro- 
visions for  Protection  and  monopoly  in  matters  of 
Trade,  it  is  probable  that  they  did  really  promote  and 
foster  the  beginnings  of  commerce,  and  did  certainly 
determine  the  seat  of  them  in  particular  localities. 
That  they  did  this  at  the  immediate  cost  of  some 
loss  to  the  owners  and  farmers  of  land  is  certain. 
This  is  proved,  and  it  is  all  that  can  be  proved,  by 
the  doctrines  of  Free  Trade.  Nor  is  it  probable  that 
this  cost  was  wholly  unknown  to  those  classes  at  the 
time.  The  prohibition  of  direct  sale  to  foreign  mer- 
chants indicates  clearly  enough  that  if  they  had  not 
been  prohibited,  such  foreign  merchants  would  have 
visited  the  country,  and  would  have  given  higher 
prices  than  the  merchants  of  Berwick  or  Dundee.  But 
the  general  sense  of  all  classes  seems  to  have  been 
instinctively  in  favour  of  Protection — on  the  simple 
ground  that  it  was  assumed  to  be  a  national  object 
to  establish  and  to  encourage,  even  at  some  cost, 
native  merchants,  and  native  mercantile  communi- 
ties. Probably  this  assumption  was  made  without 


90  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

argument  or  conscious  reasoning  of  any  kind,  and 
almost  certainly  without  any  attempt  to  calculate 
what  the  extra  cost  might  be  to  the  other  classes  of 
society.  It  is  certain,  however,  that  the  spirit  of 
monopoly  thus  planted  in  the  Burghs  was  continued 
and  developed  in  these  communities  until  it  almost 
stifled  the  commerce  which  it  aimed  at  protecting. 
The  Trade-Guilds  became  most  tyrannically  exclusive, 
and  it  was  not  until  almost  our  own  time  that  the 
evils  attending  them  became  obvious  to  all. 

It  was  most  fortunate,  and  in  some  respects  most 
singular,  that  no  similar  spirit,  and  no  similar  legis 
lation,  arose  in  our  early  history  in  respect  to  deal- 
ings in  land.  The  blunder  is  very  gross  indeed 
which  confounds  property  in  anything  with  monopoly 
in  dealing  or  exchange.  They  are  not  only  different, 
but  they  are  the  antithesis  of  each  other.  Monopoly 
consists  in  the  exclusion  or  limitation  of  Free 
Exchange.  But  Free  Exchange  depends  absolutely 
on  Free  Possession.  Men  cannot  exchange  with  each 
other  freely  anything  which  they  do  not  possess  fully. 
They  cannot  give  to  another  that  which  they  do  not 
hold  themselves.  Therefore,  that  recording  and 
defining  process,  in  respect  to  the  fulness  of  Owner- 
ship, which  we  have  seen  to  be  the  basis  of  all 
written  Charters,  was  the  essential  preliminary  and 
condition  of  Free  Exchange  in  respect  to  land.  In 
acknowledging,  and  in  giving  a  legal  form  to  rights 
of  possession  which  had  been  long  acquired,  our  early 
laws  made  those  rights  easily  transferable  from  one 
man  to  another.  And  on  such  transfers  there  was  no 


THE  AGE  OF  CHARTERS.  91 

restriction.  The  idea  of  Entails  was  of  much  later 
date.  In  the  early  centuries  of  the  Scottish  Monarchy 
the  right  of  alienation  was  recognised  as  co-extensive 
with  the  right  of  possession.  Moreover,  this  uni- 
versal right  of  alienation  corresponded  with  an 
equally  universal  right  of  acquisition.  It  was  a  right 
which  had  no  limits  as  regarded  any  particular  classes 
of  men,  whether  distinguished  from  others  by  birth, 
or  (as  in  the  case  of  traders)  by  pursuits  and  avoca- 
tions. All  men  who  owned  land  could  dispose  of  it, 
not  to  particular  classes  only,  but  to  all  other  men 
who  could  buy  it.  In  this  respect  the  Feudalism  of 
our  Island  avoided  that  element  of  monopoly  which 
was  developed  in  the  Teutonic  Feudalism  of  Ger- 
many. In  Prussia,  for  example,  particular  areas  of 
land  could  only  be  bought  and  sold  among  certain 
restricted  breeds  of  men.  One  set  of  acres  belonged 
to  and  could  only  be  held  by  the  Peasant  class — an- 
other set  of  acres  belonged  to,  and  could  only  be  held 
by  the  class  of  Nobles.  Free  exchange  in  Land  was 
rendered  impossible  by  these  barriers  of  monopoly, 
properly  so  called.  Some  years  ago  ignorant  men 
were  calling  in  this  country  for  some  imitation  of 
the  land  reforms  of  the  great  Prussian  ministers 
Stein  and  Hardenberg.1  They  did  not  know  that 
one  main  object  of  those  reforms  was  to  establish 
in  Prussia  that  very  system  of  full  property, — 
of  undivided  Ownership, — and  therefore  of  free 
exchangeability,  which  had  been  established  here 
for  centuries,  and  was  indeed  of  immemorial  anti- 

1  Lift  of  Stein,  by  Professor  Seeley,  vol.  i.  ch.  iii. 


92  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

quity.  The  German  statesmen  were  driven  by  the 
utter  ruin  which  restrictions  on  the  full  and  free 
Ownership  of  land  were  bringing  on  the  country,  to 
aim  at,  and  ultimately  to  effect  the  complete  aboli- 
tion of  all  such  restrictions.  But  they  were  brought 
to  see  this  not  without  a  struggle.1  They  clung  for 
a  time  to  the  artificial  Protection  of  Peasants'  land 

—for  the  sake  of  keeping  up  the  military  popula- 
tion. But  once  they  had  entered  on  the  path  of 
enfranchisement  they  found  that  they  could  not 
halt  short  of  the  only  conclusion  to  which  it  logically 
and  practically  led.  The  bondage  of  men  to  the  soil 
had  to  be  abandoned,  and  the  correlative  bondage  of 
the  soil  to  one  class  of  men,  had  to  be  abandoned 
also.  Two  other  correlatives  had  to  be  substituted 
for  these  :  one  was — full  and  unrestricted  Owner- 
ship ;  the  other  was  the  free  transfer  or  saleability 
of  that  Ownership  to  men  of  all  classes  and  degrees. 
All  this  had  been  effected  in  Scotland  more  than  500 
years  before.  Bondage  to  the  soil  had  been  killed 
out  with  Serfdom.  Ownership  had  been  redeemed 
from  arbitrary  exactions — had  been  made  as  full 
and  definite,  and  undivided,  as  words  could  make  it. 
It  had  been  conveyed  in  forms  which  lent  them- 
selves to  easy  transfer,  and  to  the  security  of  a  multi- 
tude of  subordinate  transactions.  This  was  the  re- 
cording work — in  so  far  as  they  did  any  work  at  all 

—of  the  early  Charters.  Those  who  held  them  imme- 
diately began  to  alienate,  to  sell,  to  sub-feu,  to  lease, 
and  in  many  complicated  forms  to  dispose  of,  to  other 

1   Life  of  Stein,)  by  Professor  Seeley,  vol.  i.  ch.  iii. 


THE  AGE  OF  CHARTERS.  93 

men,  that  Ownership  which  is  the  essential  basis  of 
Free  Exchange  of  every  kind  and  of  every  name. 

There  never  was  in  Scotland  any  restriction  either 
as  regarded  the  classes  of  men  to  whom  Charters 
were  given,  or  as  regards  the  classes  to  whom  deri- 
vative tenures  could  be  sold  or  granted.  To  the 
Burghs  themselves  valuable  lands  were  sometimes 
granted  by  these  Charters  as  well  as  various  dues 
and  lordships  over  landed  property.  These  consti- 
tute to  this  day,  portions  of  the  "Common  Good" 
of  various  Burghs,  and  such  estates  have  been  man- 
aged by  the  respective  Corporations  on  precisely  the 
same  principles  on  which  land  has  been  managed 
by  other  Owners. 

We  must  look  back  then  on  the  Age  of  the  first 
Charters  as  having  laid  the  foundations  of  national 
progress  on  the  firm  ground  of  ancient  rights  and 
obligations  so  clearly  and  accurately  defined  as 
thereby  to  be  made  the  subjects  of  Free  Exchange. 
The  exceptional  privileges  given  to  popular  Bodies, 
constituting  in  their  hands  exclusive  trade  mono- 
polies, were  at  least  accessible  to  as  many  as  could 
place  themselves  in  the  position  of  Burgesses  by 
residence  or  otherwise.  They  were,  at  all  events, 
in  accordance  with  the  national  sentiment  of  the 
time,  and  the  Charters  under  which  they  were 
formally  secured  took  their  place  among  the  Institu- 
tions which  welded  together  the  various  classes  and 
interests  of  the  State. 

All  of  these  classes  and  interests  had  been 
taught  and  drilled  to  feel  and  to  act  together  in  and 


94  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

by  the  War  of  Independence.  The  Clergy  had 
taken  an  early  and  an  honourable  part.  A  convoca- 
tion of  the  Church,  held  at  Dundee,  had  been  the 
earliest  public  Body  to  espouse  the  cause  of  Bruce. 
The  Towns  and  Burghs  had  co-operated  in  hostility 
to  the  scattered  English  garrisons.  A  mere  handful 
of  Knights  had  indeed  begun  the  war,  but  each 
small  success  had  rallied  others  to  the  standard,  and 
in  so  far  as  popular  sentiment  was  operative  at  all  in 
those  times,  it  spread  by  contagion  among  the  mili- 
tary classes  without  distinction  of  origin  or  of  race. 
Almost  all  parts  of  the  Kingdom  sent  their  contin- 
gents to  the  little  army  which  won  the  day  at  Ban- 
nockburn.  Of  the  four  Divisions  or  "  Battles  "  into 
which  that  army  was  arranged,  the  one  which  Bruce 
himself  commanded  was  composed  of  the  men  of 
Carrick,  of  Argyll,  and  of  the  Isles.1  These  must 
have  been  almost  purely  Celtic,  yet  we  hear  nothing 
of  the  peculiar,  impetuous,  but  undisciplined  and 
unsteady  methods  of  fighting  which  afterwards 
became  so  celebrated  as  characteristic  of  the  Hio-h- 

o 

land  Clans.  Indeed  from  the  position  assigned  to 
them  by  the  King,  round  his  own  person,  and  held 
as  a  Heserve,  it  is  clear  that  they  must  have  been 
considered  among  the  very  best  and  most  highly 
disciplined  troops  at  his  disposal.  It  would  almost 
seem  as  if  the  military  genius  of  that  remarkable 
man,  and  the  necessities  of  rigid  discipline  which  his 
long  and  arduous  contest  imposed  upon  him,  had 
enabled  him  to  anticipate  these  modern  days  when 

1  Barbour's  Bruce,  bk.  viii.  1.  330-4o. 


THE  AGE  OP  CHARTERS.  95 

Highland  regiments  have  been  not  only  the  most 
dashing,  but  the  steadiest  and  most  enduring  among 
the  battalions  of  the  British  army.  For,  of  this 
amalgamating  power  exercised  by  Bruce,  we  have 
another  example  which  is  too  little  remembered. 
Bannockburn,  as  one  of  the  Decisive  Battles  of  the 
World,  has  obliterated  the  memory  of  another  battle, 
which,  as  a  feat  of  arms,  was  hardly  less  memorable. 
It  is  almost  forgotten  now  that,  eight  years  after 
Bannockburn,  in  1 322,  King  Robert  invaded  England, 
and  again  routed  Edward  n.  in  a  pitched  battle  in  his 
own  Kingdom,  in  the  heart  of  Yorkshire.  In  this 
battle  of  Byland  Abbey,1  it  is  recorded  that  the  criti- 
cal operation  of  the  day,  in  the  carrying  of  a  steep 
hill,  was  committed  by  Bruce  to  the  same  Western  and 
Celtic  soldiers  who  had  been  under  his  own  special 
command  at  Bannockburn,  and  to  whom,  in  the  heat 
of  this  new  day,  he  had  recourse  to  carry  the  high 
and  craggy  ridge  which  looks  down  on  the  Vale  of 
Pickering.  The  nature  of  this  manoeuvre,  executed 
under  the  good  Lord  James  Douglas,  is  specially 
likened  by  the  historian  to  that  by  which  the  King 
had  defeated  the  Chief  of  Lome  on  the  steep  sides 
of  Ben  Cruachan  in  1307. 2 

We  must  read  all  these  events  together.  They 
show  the  complete  amalgamation  between  all  parts 
of  the  Scottish  nation  which  had  been  going  on  for 
a  long  period,  and  which  is  not  one  whit  more  con- 
spicuous in  the  Charters  than  in  the  military  and 

1  Byland  Abbeyx  a  Cistercian  Monastery,  founded  in  1177.    The  Ruins 
still  remain,  situated  in  the  Parish  of  Coxwold,  North  Riding. 
-  Barbour's  Bruce,  bk.  xiii.  1.  230-40.     Tytler,  vol.  i.  p.  328. 


96  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

political  transactions  of  that  age.  Neither  in  the 
tenure  of  land,  nor  in  rank  and  service  on  the  field 
of  battle,  was  there  the  slightest  difference  made  in 
those  grandest  days  of  our  history  between  the 
Lowlands  and  the  Highlands.  In  accepting  the 
new  written  grants,  which  were  given  by  King 
Robert  to  all  who  stood  by  him  in  his  struggle,  the 
Highland  Chiefs  of  Argyll,  of  Kintyre,  and  of  the 
Isles,  stood  on  exactly  the  same  footing  as  the  great 
Earls  of  Ross  and  of  Moray,  of  Lennox  and  Strathern, 
or  as  his  own  family  had  stood  for  some  generations 
with  reference  to  Annandale  and  Carrick.  His 
Charters,  like  those  of  his  predecessors,  and  those 
of  his  successors,  were  nothing  more  than  the  sign 
and  seal  set  by  a  new  Authority  upon  a  long- 
continuity  of  Leadership,  and  upon  a  long  con- 
tinuity of  Possession  of  which  that  Leadership  had 
been  the  real  origin,  and  of  which  it  had  always 
been  the  real  title  and  guarantee.  During  centuries 
of  a  growing  civilisation,  that  Leadership  had  sup- 
plied whatever  elements  there  were  of  Authority,  of 
Security,  and  of  acknowledged  Obligation,  in  the 
nascent  organisation  of  the  State.  Those  who  held 
that  Leadership  had  originally  Avon  it  by  superior 
qualities  of  head  and  hand ;  and  through  many 
rough  and  troublous  generations  they  never  could 
have  kept  it  except  by  a  continuity  of  powers  as 
hereditary  as  the  continuity  of  names. 

Nor  at  any  time  during  the  five  or  six  hundred 
years  between  the  dawn  of  Celtic  history  in  Scotland 
and  the  date  of  these  new  Charters,  had  these  leaders 


THE  AGE  OF  CHARTERS.  97 

of  the  Clans  and  of  the  people  rendered  a  better  or 
a  nobler  service  to  the  country  than  in  that  which 
secured  to  them  those  new  confirmations  of  old 
rights  from  King  Robert  the  Bruce  and  from  his 
descendants.  Men  are  apt  to  speak  very  thought- 
lessly now  of  the  origin  of  property  which  has  been 
acquired  by  the  sword — as  if  the  sword  represented 
nothing  but  brute  force  and  predatory  violence. 
They  forget  that  military  service  and  military  suc- 
cess have  often  required  the  very  highest  faculties 
of  Head  and  Heart  and  Hand.  And  never,  perhaps, 
has  this  been  more  true  than  of  the  service  which 
was  rendered  to  the  Bruce  by  the  Chiefs  and  Barons 
who  fought  with  him.  The  contest  in  which  that 
Sovereign  won  the  independence  of  his  native 
country  against  all  the  Chivalry  of  England  with 
no  small  aid  from  the  Chivalry  of  France,  was  a 
contest  memorable  for  all  time.  Perhaps  we  can 
hardly  realise  fully  now  all  the  qualities  of  courage, 
tenacity,  and  patriotism  which  were  exhibited  by 
those  who  stood  by  The  Bruce  during  all  the  vicissi- 
tudes, discouragements,  and  almost  despairs  of  that 
deadly  struggle.  And  when  at  last  the  fate  of 
Scotland  came  to  be  decided  on  that  famous  field  in 
the  narrow  valley  of  the  Bannock,  we  can  hardly 
realise  how  stout  the  hearts  must  have  been 
which  clustered  round  the  Standard  of  the  "Bored 
Stone."  l  It  is  said  that  the  English  cavalry  alone 
exceeded  in  number  the  whole  army  of  the  Bruce. 

1  A  stone  which  remains  to  this  day  on  the  Field  of  Bannockburn, 
upon  which  the  Standard  of  the  Bruce  was  planted  in  the  battle. 

VOL.  I.  G 


98  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

Their  furious  charges  had  to  be  met  by  a  manoeuvre 
of  the  infantry  with  pikes,  that  seems  to  have 
anticipated  the  formation  of  squares  with  the  front 
rank  kneeling,  against  which  the  French  cavalry 
"'  stormed  themselves  away  "  at  Waterloo. 

It  is  impossible,  even  now,  after  the  lapse  of 
more  than  570  years,  to  read  any  account  of  that 
battle — or  still  more  to  visit  the  field, — without 
emotion.  For  we  must  remember  all  the  political 
and  social  questions  which  depended  on  it.  For 
good  or  for  evil,  tremendous  issues  follow  on  the 
gain  or  on  the  loss  of  national  independence. 
Where  there  is  an  inferior  people — or  a  people 
which  has  travelled  far  on  a  wrong  road — it  may 
often  be  well  that  they  should  be  conquered.  The 
mixture  of  a  stronger  race,  and  the  bringing  in 
of  better  laws,  may  be  the  best  of  all  results.  But 
where  the  seeds  of  a  strong  national  civilisation,  of 
a  strong  national  character,  and  of  intellectual 
wealth  have  been  deeply  sown  in  any  human  soil, 
the  preservation  of  it  from  conquest,  and  from 
invasion,  and  from  foreign  rule,  is  the  essential 
condition  of  its  yielding  its  due  contribution  to  the 
progress  of  the  world.  Who,  then,  can  compute 
or  reckon  up  the  debt  which  Scotland  owes  to  the 
few  and  gallant  men  who,  inspired  by  a  splendid 
courage  and  a  noble  faith,  stood  by  The  Bruce  in 
the  War  of  Independence,  and  on  June  24,  1314, 
saw  the  armies  of  the  invader  flying  down  the  Carse 
of  Stirling  ?  Some  of  these  men  were  the  descend- 
ants of  ancestors  who  had  held  the  same  relative 
place,  and  had  rendered  the  same  relative  service 


THE  AGE  OF  CHARTERS.  99 

in  all  the  older  contests  which  had  built  up  the 
Kingdom  and  the  Nation — which  had  united  under 
one  Crown  the  divided  dominions  of  the  Picts  and 
Scots — which  had  secured  the  Lothians  for  Scot- 
land, and  had  established  the  boundaries  of  the 
Kingdom  at  the  Tweed. 

Never,  perhaps,  has  there  been  a  more  honour- 
able origin  for  the  tenure  of  land,  than  that  which 
was  consecrated  afresh  by  the  Charters  of  the  Four- 
teenth and  following  Centuries  in  the  hands  of  those 
Chiefs  in  Scotland  who  had  then  already  won  and  had 
already  held  them  for  many  generations.  In  some 
cases  the  same  lands  are  to  this  day  owned  by  lineal 
descendants  of  the  men  who  fought  with  Bruce.  In 
others,  derivative  tenures  coming  from  those  Char- 
ters as  their  legal  source,  have  been  the  subject  of 
inheritance,  of  exchange,  and  of  sale  during  the 
course  of  five  hundred  years.  And  during  all  these 
centuries  it  can  be  shown  that  the  successive  holders 
have  continued  to  be  the  leaders  of  the  nation  in 
the  ever  opening  and  widening  fields  of  action  on 
which  all  the  triumphs  of  an  advancing  civilisation 
have  been  won.  In  their  hands  was  vested  the  only 
power  which  in  those  rough  ages  could  maintain  any 
civil  peace  or  political  organisation.  It  was  they 
who  introduced  the  Anglo-Saxon  culture, — and 
endowed  the  Latin  Clergy, — and  brought  in  the 
Roman  Law ;  and  it  was,  as  we  shall  see,  through 
their  wise  and  gradual  legislation  that  agricultural 
husbandry  was  raised  to  the  dignity  of  a  Profession, 
and  was  provided  with  that  legal  security  which 
could  alone  enable  it  to  become  an  Art. 


CHAPTER   III. 

THE  AGE  OF  COVEXAXTS. 

WE  now  come  to  that  other  great  branch  of  historical 

o 

inquiry  which  concerns  not  the  Ownership  but  the 
cultivating  Occupation  of  the  land.  At  first  sight, 
and  looking  only  to  the  surface  of  things,  it  might 
seem  as  if  the  effect  of  Charters,  however  favourable 
to  those  who  got  them,  might  be  unfavourable  to 
those  who  had  only  subordinate  interests  in  the  soil. 
And  so  it  would,  if  Charters  had  been  what  we  have 
seen  that  they  were  not.  If  the  powers  and  attri- 
butes which  they  recognised  as  belonging  to  Leader- 
ship over  men,  and  to  Ownership  of  land,  had  been 
new  inventions,  introduced  for  the  first  time  by  a 
foreign  and  a  conquering  race,  they  might  have,  and 
probably  they  would  have,  worked  injuriously.  But 
as  those  powers  and  attributes  were  nothing  of  the 
kind, — as  they  were,  on  the  contrary,  purely  indi- 
genous and  of  strictly  native  growth,  they  worked, 
and  were  worked  in  the  spirit  of  the  new  Form,  and 
of  the  new  embodiment  which  had  come  to  them 
with  the  increase  of  legal  knowledge,  and  the  pro- 
gress of  civilisation.  In  this  distinction  lies  the 
whole  difference  between  life  and  death  in  all  human 
Institutions.  For  in  them  the  same  law  prevails 
which  in  organic  bodies  is  called  the  "correlation  of 


THE  AGE  OF  COVENANTS.  101 

growth" — that  law  in  virtue  of  which  all  healthy 
developments  in  one  member  are  surely,  though 
often  invisibly,  accompanied  by  corresponding  and 
closely  related  developments  in  many  surrounding 
parts.  In  secrecy  and  in  silence,  through  all  the 
centres  of  influence  and  all  the  germs  of  growth,  the 
Formative  Energy  which  governs  and  directs  the 
whole,  builds  up  along  a  thousand  lines  the  parallel 
structures  which  are  needed  for  the  harmony  of  Life. 
Nor,  in  the  case  before  us,  is  there  any  mystery 
as  to  the  nature  of  the  processes  which  ran  below 
and  above,  and  alongside  of  each  other,  in  the  Age  of 
Charters.  It  is  true  that  these  Instruments  imposed 
no  limits  on  the  fulness  of  that  Possession  which 
they  were  intended  to  convey.  On  the  contrary,  it 
was  the  special  object  of  them  to  make  that  Posses- 
sion as  full  and  secure  as  possible.  But  it  is  equally 
true  that  the  fundamental  conception  of  all  Charters 
was  that  of  legal  definition,  and  the  substitution  of 
fixed  and  definite  obligations  for  liabilities  which 
were  incalculable  because  they  were  purely  arbitrary, 
casual,  and  lawless.  This  fundamental  conception, 
in  giving  birth  to  Charters,  gave  birth  at  the  same 
time,  and  of  necessity,  to  other  Instruments  of  a  like 
nature,  which  were  derivative  and  subordinate.  It 
inspired  the  whole  series  of  transactions  which  were 
in  any  way  related  to  the  same  subject.  Men  who 
accepted  from  the  Crown,  or  from  great  Subjects  of 
the  Crown,  Charters  of  land  on  the  emphatic  condi- 
tion that  these  lands  were  to  be  free  from  the 
ungoverned  and  ungovernable  usages  of  Celtic 


102  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

Feudalism — "the  exactions  of  Mormaer  and  of 
Toiseach  "  —  were  not  likely  to  return,  in  their  own 
relations  with  their  own  Tenants,  to  the  barbarous 
customs  whose  very  names  had  become  words  of 
opprobrium  and  reproach.  Accordingly  we  find  that 
the  Age  of  Charters  in  respect  to  Ownership  was 
also  the  Age  of  Leases,  or  other  Covenants  in  respect 
to  the  Occupation  of  land,  so  that  all  subordinate 
tenures  tended  more  and  more  to  be  governed  by  the 
same  spirit  of  substituting  limited  and  definite  obli- 
gations for  liabilities  which  were  always  capable  of 
unlimited  extension,  because  they  were  vague,  un- 
written, and  undefined. 

4_  It  may  be  well,  however,  to  look  back  a  little 
here,  to  see,  as  we  did  in  the  case  of  Charters,  what 
the  conditions  of  society  seem  to  have  been  in  the 
dark  centuries,  as  regards  the  cultivating  class. 
Perhaps  it  would  not  be  too  much  to  say  that  during 
a  great  part  of  those  centuries  there  was  no  such 
class  at  all — except  the  Monks  and  the  Serfs.  All 
other  men  lived  mainly  for  war,  or  for  the  chase ;  and 
even  the  Serfs  must  have  had  to  bear  their  share  in  the 
work  of  fighting,  or  of  attending  to  those  who  fought. 
Agriculture  cannot  be  a  pursuit  except  to  peaceful 
men,  and  there  were  then  no  peaceful  men  except 
the  Christian  Brotherhoods.  Accordingly  the  earliest 
glimpses  which  we  get  of  agriculture  in  Scotland 
are  connected  with  the  landed  possessions  of  the 
Church.  And  one  of  the  very  first  of  these  glimpses 
is  in  some  ways  the  most  interesting  of  them  all. 
Tn  the  narrative  of  the  life  led  by  St.  Columba  on 


THE  AGE  OF  COVENANTS.  103 

-fthe  Island  of  lona,  1300  years  ago,  left  us  by  the 
Abbot  Adamnan,  we  see  a  quiet  picture  of  all  the 
operations  of  a  farm  hardly  differing  at  all  from 
those  which  constitute  the  ordinary  operations  of  a 
modern  farm,  except  that  they  were  more  complete, 
and  embraced  a  more  varied  provision  for  the  com- 
forts of  life.  There  was  a  Smithy  for  needed  iron 
work.  There  was  a  Kiln  for  the  drying  of  corn. 
There  was  a  Mill  in  which  the  Monks  ground 
their  own  corn  into  meal.  There  were  cows  and 
a  cowhouse  or  Byre.  There  were  milk- pails  carried 
from  the  pastures  to  the  Monastery  on  horseback. 
There  was  a  Barn  for  the  storage  of  grain.  There 
was  a  Baker  for  baking  the  meal  or  the  flour  into 
bread.  Moreover,  it  is  significant  that  this  skilled 
official  was  a  Saxon.  There  were  wheeled  carts  or 
carriages  for  the  conveyance  of  heavy  articles.1  But 
these  early  ecclesiastical  communities  worked  the 
land  themselves,  or  with  the  help  of  servants  or 
bondmen.  In  lona,  at  all  events,  their  land  was 
too  small  in  extent  to  induce  them  to  let  out  any 
part  of  it  on  hire. 

But  in  this,  as  in  all  other  cases,  a  different 
practice  arose  naturally  out  of  different  conditions. 
The  Church  acquired  in  the  Middle  Ages  more 
and  more  extensive  grants.  That  which  conferred 
the  island  of  lona  on  Columba,  the  great  Missionary 
of  the  Sixth  Century,  was  before  the  age  of 
formal  Charters,  and  it  seems  doubtful  whether 
it  emanated  from  a  King  of  the  Picts  or  of  the 

1  Adamnan'a  Life,  of  St.  Columba,  pp.  361--. 


104  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

Scots.  But  it  is  curious  that  the  most  ancient 
notice  of  it  which  has  come  down  to  us  lays  special 
emphasis  on  the  special  feature  of  it  which  was  novel 
at  the  time.  That  feature  was  the  substitution  of 
"  Definiteness  "  for  "  Indefiniteness  "  in  the  tenure 
which  was  asked  and  given. l  The  Monks  were  wise 
enough  to  require  something  better  than  the  vague 
Tribal  tenures  which  we  have  seen  denounced  by 
Sir  J.  Davies  as  common  among  the  Irish  Celts. 

And  so  throughout  the  Middle  Ages  the  Church 
was,  as  we  have  seen,  the  great  civilising  agency  in 
establishing  security  of  tenure  in  the  Ownership  of 
land.  We  shall  now  see  that  the  Church  was  the 
great  civilising  agency,  also,  in  establishing  that 
other  kind  of  security  of  tenure  which  depended  on 
written  covenants  and  on  calculated  rents.  Ecclesi- 
astics became  the  largest  landowners  in  the  king- 
dom, possessing  estates  in  many  different  districts— 
often  at  a  great  distance  from  the  Monastery.  The 
lands  so  granted  could  not  be  wholly  cultivated  by 
their  own  servants  and  bondmen  as  the  few  fields 
could  be  cultivated  in  the  little  Island  of  lona. 
Under  such  conditions  it  is  easy  to  see  how  Tenan- 
cies arose.  For  in  principle  there  is  no  difference, 
and  in  practice  there  is  a  natural  and  inevitable 
transition,  between  cultivators  paid  by  food  or  wages 
and  cultivators  paid  by  being  allowed  to  retain  a 
certain  portion  of  the  produce.  Nor,  again,  is  the 
transition  less  easy  or  less  inevitable  from  this  con- 
dition of  things  to  that  in  which  the  cultivators 

1  Celtic  Scotland,  vol.  ii.  p.  88. 


. 


THE  AGE  OF  COVENANTS.  105 

undertake  their  work  for  a  definite  term  of  years, 
and  on  definite  conditions  as  to  the  amount  they 
are  to  pay  in  produce,  or  in  the  price  of  produce,  or 
in  services,  or  (as  was  often  the  case)  in  all  three 
forms  of  rent.  In  all  cases  the  essence  of  the  trans- 
action is  the  same.  The  Tenant  gets  from  the  lord 
or  Owner  of  the  soil  that  one  thing  which  he  himself 
has  not,  and  could  not  otherwise  get — namely,  the 
assurance  of  full  possession  and  of  the  sole  right  to 
cultivate.  This  full  possession  and  sole  right  to  culti- 
vate was  to  exclude  all  other  men.  This  exclusive 
possession  was  the  one  essential  element  of  the  whole 
transaction ;  it  was  this  for  which  the  holder  of  it 
was  too  glad  to  pay.  In  the  enjoyment  of  it  he 
was  to  be  protected  and  defended  by  the  Owner 
whose  alone  it  was,  and  who  alone  could  lend  it  and 
assure  it  to  another.  Very  often  the  Owner  gave  or 
lent  other  things  besides  this.  But  this  exclusive 
enjoyment — this  peaceful  possession  even  when  it 
stood  alone — was  that  for  which  the  Tenant  or  holder 
was  always  willing  to  pay  a  portion  of  the  produce 
as  its  price  or  rent. 

Very  often — generally,  indeed,  in  very  early 
times — when  the  actual  cultivators  were  very  poor, 
the  Owner  of  the  land  gave  or  lent  something  more 
than  the  mere  possession  of  the  soil.  He  lent  also 
the  instruments  of  husbandry,  and  the  cattle,  sheep, 
or  goats,  or  other  stock,  which  yielded  perhaps  the 
greater  part  of  the  whole  produce  of  the  land.  This 
is  still  the  footing  on  which  land  is  let  in  no  small 
part  of  Europe  under  what  is  now  called  the  Metayer 


106  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

system,  and  which  in  Scotland  was  at  one  time 
very  common,  under  the  name  of  "  Steelbow."  But 
with  the  progress  of  wealth  and  of  the  population 
of  free  men,  it  became  more  and  more  possible  to 
let  land  on  definite  Leases  to  a  class  of  cultivators 
having  sufficient  capital  of  their  own  to  furnish  the 
necessary  stock.  The  transition,  here,  as  in  other 
cases,  was  natural  and  easy,  since  Leases  had  been 
common  under  the  Roman  law,  and  the  Ecclesiastics, 
who  first  made  such  covenants,  must  have  been 
more  or  less  familiar  with  the  customs  of  their 
brethren  in  the  south  of  Europe. 

But  as  we  had  to  go  a  long  way  back  in  order  to 
understand  the  language  of  the  early  Charters,  so  in 
like  manner  we  must  go  a  long  way  back  in  order  to 
understand  the  terms  of  the  earliest  Leases.  I  have 
already  alluded1  to  the  various  causes  which  had  led 
among  the  Celts  to  the  same  division  between  Free- 
men and  Serfs  or  Bondmen  which  had  been  equally 
established  among  the  Teutonic  races.  Sentiment 
and.  poetry  combining,  not  with  knowledge,  but  with 
the  want  of  it,  has  been  spreading  popular  impres- 
sions on  this  as  on  other  kindred  subjects  which 
represent  some  great  distinction  between  Scotland 
and  England,  and  especially  between  the  Highlands 
and  the  Lowlands,  in  respect  to  the  prevalence  of 
Bondage.  It  seems  to  be  supposed  that  there  were 
no  Bondmen  among  the  Celts  as  there  were  in 
abundance  among  the  Saxons.  This  is  one  of  many 
similar  delusions  which  is  at  once  dispelled  by  the 

1  See  ante,  Chap.  I.  p.  11. 


THE  AGE  OF  COVENANTS.  107 

slightest  examination  of  the  best  ascertained  his- 
torical facts,  and  the  most  authentic  documents. 
The  earliest  Tribal  laws  and  usages  of  the  Celtic 
races,  whether  in  Ireland,  in  Wales,  in  Galloway,  or 
in  Scotland  proper,  are  permeated  through  and 
through  with  the  precepts  and  principles  of  a  rude 
jurisprudence  founded  entirely  on  lines  drawn 
between  the  Bond  and  the  Free.  The  scale  of  fines 
for  the  murder  or  homicide  of  the  different  orders  and 
classes  of  society  was  a  scale  having  this  great  line  of 
division  as  its  base  line.  The  scale  of  dues  exacted 
by  the  Chiefs  upon  marriages  among  the  people  sub- 
ject to  them,  is  also  a  scale  which  was  graduated 
upwards  from  the  number  of  cattle  due  on  the  mar- 
riage of  the  daughter  of  a  Serf.  For  every  word  in  the 
early  Saxon  language  which  designates  any  due,  or 
fine,  or  exaction  of  a  rude  and  unwritten  Feudalism 
some  corresponding  word  is  to  be  found  in  the 
various  dialects  of  the  Celtic  language  which  pre- 
vailed  over  Ireland  and  Wales  and  Scotland.1  How" 
great  was  the  difference  of  value  set  upon  the  life  of 
a  Freeman,  and  the  value  set  upon  the  life  of  a 
Serf  or  Bondman  among  the  Celts  of  Scotland  may 
be  estimated  by  the  fact  that  when  David  i.  thought 
it  expedient  to  give  a  formal  sanction  to  the  customs 
of  his  Celtic  subjects  all  over  Scotland,  he  thereby 
sanctioned  a  scale  of  fine  for  slaughter  or  homicide 
which  ranged  between  1600  cows  for  a  Prince,  100 
cows  for  a  Thane  or  Chief,  down  to  16  cows  for  the 

1  Skene's   Celtic  Scotland,  vol.  iii.  chap.  vi.  ;    Acts  of  Parl.,   vol.   i. 
p.  640. 


108  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

slaughter  of  a  "Carl"  or  Serf.     The  "merchet"  or 

O 

due  on  marriage  of  women  showed  less  difference— 
as  the  scale  ranged  between  1  calf  and  12  cows. 
Yet  these  most  rude  and  unequal  laws  are  specially 
recorded,  not  as  the  relics  of  Saxon  Serfdom,  but  as 
the  then  existing  and  living  usages  of  the  Celtic 
races — the  "Brettons"  of  St rathe] yde  and  the  "Scoti" 
in  whom  all  the  Celts  had  been  merged  north  of  the 
Clyde  and  Forth.1  But  one  of  the  most  significant 
facts  showing  how  much  the  poorer  classes  gained  by 
the  gradual  disappearance  of  Celtic  customs  in  respect 
to  Bondage,  is  this — that  under  those  customs  it  is 
evident  that  there  had  been  established  precisely  the 
same  connection  between  Serfdom  and  particular 
areas  of  land  which  led  to  such  ruinous  results  in 
Prussia.  In  one  of  the  fragmentary  laws  which 
have  been  collected  in  the  document  called  "Quoniam 
Attachiamenta"2  there  is  one  which  shows  that  the 
mere  fact  of  a  man,  his  son,  and  his  grandson,  occupy- 
ing certain  portions  of  land  which  were  known  as 
"  servile,"  and  rendering  for  it  corresponding  services, 
he  and  all  his  descendants  to  the  fourth  generation 
became  members  of  the  servile  class,  and  could  be 
adjudicated  to  be  so  before  an  assize  court.3 

In  all  this  we  can  trace  a  steady  stream  of  history 
running  through  several  centuries  from  the  wild  and 
rough  hills  of  Celtic  Feudalism  into  the  rich  and 
cultivated  plains  of  modern  progress.  We  see 
passing  before  us  the  long  series,  and  the  gradual 

1  Acts  of  Par!.,  vol.  i.  p.  6G3.  '-'  Ibid.  p.  G">f>. 

3  Ibid.  ;  Skene's  Celtic  Scotland,  vol.  iii.  p.  22. 


THE  AGE  OF  COVENANTS.  109 

current    of  events  which    prove   that    the  Age  of 
Charters   and   the   Age   of  Covenants,    instead   of 
having  been  times — as  they  are   often   ignorantly 
represented — of  the  suppression  of  ancient  liberties 
among  the   Celts,   by  the    introduction  of  foreign 
tyranny — were,   on   the  contrary,   times  when  the 
poorer  classes  of  the  Celtic  community  were  gradu 
ally  but  steadily  delivered  and  redeemed  from  very 
barbarous  conditions,  not  only  of  Feudalism  but  of 
servitude,  which  had  grown  up  among  themselves. 
When  we  think  of  the  relics  and  survivals  of  that  bar- 
barism which  were  still  affecting  widely  and  deeply  the 
condition  of  society  in  the  Twelfth  and  Thirteenth 
Centuries,  we  must  estimate  all  the  more  highly  those 
gentle  but  penetrating  influences  of  civilisation  which 
were  then  sapping  their  foundations,    and   before 
which,  like  snow  before  the  breath  of  a  southern  air, 
they  did  within  the  next  200  years  almost  entirely 
disappear  in  Scotland.     Moreover,  we  can  see  that 
it  was   the    Celtic   race    which    most   immediately 
and  directly  benefited  by  the  changes  which  were 
destroying  Bondage.     For  they  often  remained  as 
the  poorer  and  the  working  population  of  the  greater 
part  of  the  Lowlands  and  of  the  eastern  counties 
over  the  whole  of  Scotland,  while  the  Ownership  of 
the  land  was  passing  steadily  into  the  hands  of 
Anglo-Saxon  and  Anglo-Norman  Lords.     This  fact 
is  very  clearly  reflected  in  the  early  Charters  and 
other  documents  in  which  the  regular  word  for  the 
Serfs  or  Bondmen  was  the  "  Nativi,"  or  old  native 
Celtic  population,  whilst  in  some  Charters  they  are 


110  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

called  the  "  Cumerlache"-—  a  purely  Celtic  word 
which  has  been  traced  through  the  Irish  language  to 
the  term  applicable  to  men  who  cultivated  "  servile 
land."1  Moreover,  in  almost  all  cases  in  which  indi- 
viduals of  this  class  are  mentioned  in  the  Chartu- 
laries,  they  are  designated  by  Celtic  names.2 

One  of  the  earliest  steps  which  seems  to  have 
led  to  the  elevation  of  this  class  out  of  the  ranks  of 
Bondage,  was  a  step  which,  at  first  sight,  may  seem 
to  have  been  in  a  backward  rather  than  in  a  forward 
direction.  This  step  was  the  practice  which  seems 
to  have  been  begun  by  the  Monks  of  moving  the 
Bondmen  from  one  estate  to  another  for  the  sake  of 
their  labour  in  the  reclamation  of  land.  "  Chattel 
slavery"  is  associated  in  our  minds  with  a  very 
inferior  condition  as  compared  with  the  old  mediaeval 
Serfs  who  were  "  adstricti  giebre" — transferable  from 
one  master  to  another  only  along  with  the  land  on 
which  they  lived.  And,  no  doubt,  this  would  have 
been  a  backward  step — if  it  had  stood  alone — or 
rather  if  it  had  not  stood  in  close  connection  with 
other  influences  which  gave  to  it  a  very  different 
tendency.  But  when  all  those  other  influences 
were  moving  in  the  direction  of  freedom,  the  mere 
breaking  of  a  bond  which  tied  men  to  a  certain 
locality  was  clearly  in  itself  a  gain.  If  the  spirit  of 
the  age  was  to  make  all  dues  of  service  more  fixed 
and  definite — if  service  itself  was  coming  to  be 
measured  by  money  payments — if  sale  was  already 
passing  into  hire, — it  is  clear  enough  that  the 

1  Skene's  Celtic  Scotland,  vol.  iii.  p.  223.  2  If/id,  p.  222. 


THE  AGE  OF  COVENANTS.  Ill 

trans  ferability  of  labour  would  be  an  advantage  in 
itself. 

This  is  another  of  the  innumerable  cases  in  which 
the  effect  of  any  given  social  or  political  change  is 
entirely  dependent  on  surrounding  conditions.  It 
is  curious  to  observe  how  completely  unconscious 
those  men  were  who  began  this  change,  of  the  result 
to  which  it  evidently  contributed.  They  thought 
only  of  the  infraction  it  involved  of  ancient  rights 
and  usages — and  they  treated  it  accordingly  in  a 
spirit  of  apology.  Indeed  they  had  to  apply  for 
special  permission  to  the  Sovereign.  All  this  appears 
very  clearly  in  the  earliest  documents  we  possess 
which  record  transactions  of  this  kind.  Thus  we 
have  a  special  Ordinance  or  Prescript  of  Malcolm  iv. 
(1153-1165),  in  which  he  gives  permission  to  the 
Prior  and  Monks  of  Coldingham  to  move  "  their  own 
men,"  that  is,  their  Bondmen,  from  the  particular 
land  on  which  they  served  to  Coldingham,  for  the 
purpose  of  settling  that  Township.1  The  King  for- 
bids any  one  to  trouble  them  in  this  matter.  So 
again  in  the  Reign  of  Alexander  n.  we  have  the 
same  Prior  and  Monks  purchasing  for  3  silver  merks 
a  Serf,  with  his  sons  and  daughters,  from  a  private 
landowner,  who  in  his  deed  or  note  of  sale  takes 
great  care  to  plead  that  the  transaction  was  one 
arising  out  of  his  "  great  want."2  And  so  again  in 
another  transaction  of  the  same  kind  between  the 
same  Monks  and  a  different  landowner,  he  explains 
in  the  same  spirit,  that  the  price  of  10  merks  had 

1  National  Manuscripts  of  Scotland;T?&rt  i.  No.  XXX.     2  Hid.  No.  XIV. 


112  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

been  given  to  him  "  in  his  great  necessity."1  On 
the  other  hand  we  have  abundant  evidence  that  the 
rigidity  of  the  old  Celtic  tie  between  the  Bondman 
and  the  land  on  which  he  lived  and  served,  was 
being  constantly  broken  from  another  cause.  The 
Bondmen  themselves  had  an  instinct  in  favour  of 
free  labour.  In  former  times  they  had  often  eagerly 
sought  for  the  means  of  sustenance,  and  for  the  pro- 
tection which  came  with  Bondage.  But  now  they 
were  perpetually  escaping.  "  Fugitivi"  became  one 
of  the  recognised  names  for  them  in  numerous  docu- 
ments of  that  age.  Some  of  these  documents  are 
express  mandates  of  the  Koyal  authority  in  favour 
of  Monasteries  entitling  them  to  pursue  and  recover 
their  fugitive  Serfs  wherever  they  might  be  found  on 
the  lands  of  other  men.  Thus  the  same  Sovereign, 
Malcolm  iv.  (1 153-1 1G5),  whom  we  have  seen  giving 
to  the  Monks  of  Coldingham  the  privilege  of  moving 
Bondmen  from  one  estate  to  another,  gives  to  them 
also  a  Precept  commanding  all  men  that  "wherever 
the  Prior  or  his  servants  can  find  fugitive  Serfs  justly 
belonging  to  Coldingham,  they  shall  have  them 
justly,  without  disturbance  or  trouble,  and  I  forbid 
-;that  any  of  you  detain  them  unjustly."2  Thus  again 
in  a  later  reign,  that  of  Alexander  II.  (1214-1249), 
we  have  that  Sovereign  issuing  a  similar  Precept  in 
favour  of  the  Abbot  of  Scone,  "  or  his  Serjeant,"  and 
in  this  case  Serfs  or  Bondmen  are  designated  by 
their  ancient  Celtic  designations  of  "  Cumlaws  and 

1  National  Manuscripts  of  Scotland,  Parti.  No.  LIX. 

2  Ibid.  No.  XXX. 


THE  AGE  OF  COVENANTS.  113 

Cumherbes,"  and  they  are  described  as  "belonging  to 
the  lands  of  the  Abbacy  of  Scone."1 

In  all  these  transactions  for  the  purchase  of  Serfs, 
and  for  reclaiming  them,  the  Abbots  and  Priors  of 
these  days  were  acting  for  the  best.  Not  only  were 
they  working  hard  at  the  Improvement  of  the 
Country,  but  they  were  bringing  the  sweet  influ- 
ences of  Christianity  and  the  civilising  traditions 
of  the  Church  to  bear  upon  the  relations  between 
all  those  powers  which  then  represented  Capital,  and 
all  those  persons  who  then  represented  Labour. 
Just  as  for  centuries  they  had  been  the  great  instru- 
ments in  checking  the  exactions  of  "  Mormaer  and 
of  Toiseach,"  so  now  they  were  not  less  active  in 
raising  the  condition  of  that  lowest  grade  in  Celtic 
society,  the  "Cumlaws  and  the  Cumherbes."  When 
they  got  these  Serfs  into  their  possession,  they 
settled  them  on  their  lands  with  commutation  and 
limitation  of  the  services  which  they  had  before 
been  bound  to  render.  The  old  Columbite  principle 
of  changing  the  Indefinite  into  the  Definite,  which 
puts  an  end  to  so  much  that  is  picturesque  and 
sentimental,  but  is  nevertheless  the  very  foundation 
of  everything  that  is  civilised  and  free,  was  the 
principle  for  which  they  worked,  and  which  they 
gradually  succeeded  in  establishing. 

On  this  subject  we  have  some  detailed  and 
most  interesting  information.  The  Rentals  and  the 
Journals  of  several  of  the  Monasteries  during  the 
Thirteenth  Century  have  been  preserved,  and  parti- 

1  National  Manuscripts  of  Scotland,  Part  i.  No.  XXXVII. 
VOL.  I.  H 


114  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

cularly  those  of  some  of  the  great  Monasteries  of 
Teviotdale.  Thus  from  the  Rental  of  the  Abbacy 
of  Kelso  in  1290  it  appears  that  all  the  agricul- 
tural class  whom  they  settled  on  their  Estates, 
whether  they  had  been  Serfs  or  Freemen,  were 
held  liable — not  to  "Cosherings"  or  "Cuttings" 
or  "Hostings"  or  "Conveth"  or  "  Caulpes,"  or 
any  of  the  other  old  Celtic  exactions,  but  to  fixed 
rents  in  money,  together  with  services  limited  to  a 
certain  number  of  days,  or  to  the  doing  of  certain 
definite  things.  Thus  each  Cottar  paid  from  one  to 
six  shillings  a  year,  with,  services  not  exceeding 
nine  days'  labour.  The  tenants  of  certain  Crofts 
paid  each  two  Bolls  of  meal,  and  were  bound  to 
shear  the  whole  corn  on  a  particular  set  of  fields. 
Again,  on  other  holdings  of  a  large  size,  the  tenants 
were  bound  to  pay  Gs.  8d.  of  money  rent,  and  to 
render  certain  services  in  harvest,  in  sheep-shearing, 
in  carrying  peats  and  wool,  or  in  fetching  the  Abbot's 
commodities  from  Berwick.  These  arrangements 
seem  all  to  have  been  settled  by  mutual  agreement 
and  stipulations,  and  they  were  so  precise  that  they 
fixed  even  the  services  in  which  the  husbandman 
was  to  have  his  food  from  the  Abbey,  and  those  in 
which  he  was  to  maintain  himself.1 

Nor  is  this  all.  The  same  penetrating  spirit  of 
reform,  in  substituting  fixed  dues  for  vague  and  semi- 
barbarous  usages,  extended  to  every  department 
in  the  management  of  their  large  estates.  These 

1  Scotland  in  the  Middle  Agex,  by  Cosmo  limes,  pp.  243-45 ;  Burton's 
History  of  Scotland,  vol.  ii.  pp.  194,   105. 


THE  AGE  OF  COVENANTS.  115 

often  included  great  extents  of  mountain-pastures 
which  could  only  be  grazed  by  sheep.  For  these 
the  Monks  made  careful  arrangements  as  to  folds,  as 
to  huts  or  bothies  for  the  herds,  and  as  to  shelter 
for  the  cattle.  The  evidence  of  full  and  complete 
powers  of  property  over  the  whole  area,  which  we 
have  seen  to  be  so  striking  in  the  wording  of  these 
Charters  does  not  rest  on  that  wording  only — but  is 
equally  confirmed  by  the  daily  life  and  the  multi- 
farious transactions  of  estate  management.  The 
frequent  transference  of  lands  from  one  Tenant  to 
another — the  settlement  of  disputed  marches — and 
the  precision  and  care  bestowed  on  Leases,  show  that 
the  fundamental  conditions  of  all  agricultural  im- 
provement were  being  rapidly  established  by  the 
Monks,  in  the  consecration  of  the  freedom  of  labour, 
and  of  corresponding  freedom, — of  order  and  legality 
—in  the  exercise  of  the  fullest  rights  of  property. 

When  we  consider  the  number  of  these  Monas- 
teries which  were  founded  in  Scotland  during  the 
Twelfth  and  Thirteenth  Centuries,  from  the  begin- 
ning of  the  reign  of  David  I.  in  1124  to  the  death  of 
Alexander  in.  in  1286,  and  when  we  consider  further 
the  ubiquity  of  their  landed  possessions,  both  in  the 
Lowlands  and  the  Highlands,  we  may  be  able  to 
form  some  estimate  of  the  influence  they  had  in 
spreading  everywhere  the  same  rules  of  conduct, 
and  the  same  principles  of  law.  There  was  no 
difference  whatever  between  the  various  parts  of 
the  Kingdom  which  were  then  Celtic  or  non-Celtic 
in  different  degrees.  Many  parts  of  the  country 


116  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

which  are  purely  Anglo-Saxon  now  were  as  purely 
Celtic  then,  whilst  throughout  the  districts  which 
we  now  call  Highland  the  great  possessions  of  the 
Church  were  universally  managed  on  the  same  prin- 
ciples, and  were  directed  from  local  Monastic  centres. 
Paisley  had  lands  all  through  the  Lennox  and 
Argyll ;  Scone  and  Cambuskenneth  and  Dumblane, 
through  Strathearn  and  Menteith ;  Dunkeld  through 
the  Central  Highlands  ;  Elgin  and  Inverness  and 
Beauly  throughout  the  northern  mountains,  and 
all  along  the  broad  sea-margins  of  the  North-Eastern 
Coasts.  And  then,  besides  the  lands  held  by  the 
Monastic  bodies,  the  old  Episcopal  Sees  of  Scotland 
were  endowed  with  large  estates.  All  of  these 
exhibited  the  same  principles  of  management,  to 
which  the  old  native  methods  were  all  steadily 
conforming.  So  far  from  the  native  Celtic  popula- 
tion complaining  of  the  full  powers  of  Ownership 
exercised  by  the  Monks  in  the  regulation  of  their 
estates, — so  far  from  feeling  this  to  be  harsh  as  com- 
pared with  the  older  systems  practised  under  their 
native  Lords  and  Chiefs, — that  population,  and  every 
population  brought  into  contact  with  the  Mon- 
asteries, were  eager  to  come  under  their  protection, 
and  to  exchange  the  heavy  and  incalculable  burdens 
of  Celtic  Feudalism  for  the  moderate  and  rational 
obligations  which  were  founded  on  Covenant  and 
on  intelligible  Law. 

Part  of  the  great  benefits  eagerly  sought  for  by 
the  people  in  coming  upon  ecclesiastical  lands 
depended,  of  course,  upon  the  special  privileges  and 


THE  AGE  OF  COVENANTS.  117 

immunities  of  the  Church  from  all  the  exactions 
which  arose  out  of  the  obligations  of  military 
service.  But  another  part — and  a  very  great  part 
—depended  on  the  fundamental  change  which  lies 
in  the  passage  from  vague  unwritten  customs  to 
written  agreements.  And  this  unspeakable  benefit 
extended  gradually  but  steadily,  and  on  the  whole 
rapidly,  beyond  the  limits  of  Church  Estates.  The 
Anglo-Saxon,  and  the  Scoto-Norman  Earls,  and 
Chiefs  and  Knights,  imbibed  the  spirit  of  their  age, 
and  dealt  with  their  Tenants  on  the  same  principles 
on  which  they  placed  so  high  a  value  in  their  own 
Charters  from  the  King.  The  very  word  Charter 
has  come  to  be  associated  in  our  ears  with  the 
conceptions  of  security  and  of  law.  It  was  the 
Instrument  to  which  every  Civic  Community  and 
every  Owner  of  land  equally  looked  as  their  tower 
of  defence  against  arbitrary  Sovereigns.  Just  as 
every  Burgh  in  Scotland  proceeded  on  the  strength 
of  it  to  develop  its  trade  and  commerce,  so,  "  armed 
with  it,  and  supported  by  the  law,  Norman  Knight 
and  Saxon  Thane,  and  Celtic  Chief,  set  himself  to 
civilise  his  newly  acquired,  or  his  newly  confirmed 
property,  settled  his  '  vil '  or  his  '  town,'  built 
himself  a  House  of  Fence,  distributed  his  lands 
among  his  own  few  followers  and  the  "nativi"  whom 
he  found  attached  to  the  soil,  either  to  be  cultivated 
on  his  own  account  or  at  a  fixed  '  ferm '  on  the  risk 

tenant."  l 
Among  the  historical  facts  which  indicate  this 

1  Oritjinea  Parochiales,  vol.  i.,  Preface,  p.  26,  by  Cosmo  limes. 


118  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

great  line  of  advance  in  the  path  of  civilisation,  one 
of  the  most  interesting  is  that  afforded  by  the 
arrangements  made  by  Alexander  in.  for  the 
marriage  of  his  daughter  the  Princess  Margaret  to 

r  Eric,  the  young  King  of  Norway,  in  1278.  This 
was  the  Princess  whose  early  death  subsequently 
gave  rise  to  the  Disputed  Succession,  and  ultimately 
to  the  War  of  Independence.  Her  portion  was  to 
be  14,000  marks,  but  with  an  option  to  her  father 

/  to   give  one-half  of  this   sum    in   Scotch    Estates. 

o 

Provisions  of  this  nature  of  course  implied  a  well- 
known  and  ascertained  relation  between  a  definite 
extent  of  land  and  its  annual  revenue  ;  and  this 
relation,  again,  could  only  be  established  on  the 
foundation  of  rents  in  money,  or  in  produce  corn- 
mutable  into  money,  which  were  not  dependent  on 
vague  customs  or  exactions,  but  upon  Covenants 
and  agreements  such  as  could  be  relied  upon  for  a 
steady  income.1 

Accordingly  we  have  historical  evidence  that 
these  Covenants  and  agreements  had  been  embodied 
in  the  form  of  written  Leases  at  a  date  almost  as 
early  as  the  earliest  Charters.  One  of  the  oldest 
upon  record  is  dated  1190,  and  conveyed  the  Tenancy 
of  certain  lands  from  a  Lay  Owner  to  the  Abbacy  of 
Kelso.2  The  system  rapidly  extended.  Every  kind 
and  species  of  property  came  to  be  let  on  hire  for 
specific  terms,  and  for  specific  rents — farms,  mills, 
breweries,  houses  with  crofts,  houses  in  towns,  titles, 

1  Tytler's  History  of  Scotland,  vol.  i.  p.  47. 
-  Hunter,  On  Landlord  and  Tenant,  p.  57. 


THE  AGE  OF  COVENANTS.  119 

annuities  secured  on  rents,  dues,  customs,  and  even 
the  use  of  woods.  In  short,  everything  and  anything 
which  men  could  own  they  could  also  either  sell  or 
let  out  on  hire.1  All  this  came  naturally,  and  as  a 
matter  of  course.  Such  transactions  arose  and  mul- 
tiplied with  the  security  of  property,  the  peace  of 
society,  and  the  advance  of  civilisation.  Towards 
the  middle  of  the  next  century  after  the  earliest 
recorded  Lease  to  the  Abbacy  of  Kelso,  in  1242,  and 
again  in  1296,  the  lettings  of  land  on  Lease  had 
become  so  common  on  Ecclesiastical  Estates  that 
Provincial  Councils  of  the  Church  drew  up  canons 
on  the  subject,  having  for  their  object  to  limit  the 
duration  of  Leases  granted  to  laymen  to  the  maxi- 
mum of  five  years.2 

But  although  these  and  other  transactions  of  a 
similar  kind  make  it  evident  that  the  system  of 
letting  land  on  hire  for  definite  rents  had  become 
well  known  and  universally  established  long  before 
the  close  of  the  Thirteenth  Century,  it  so  happens 
that  whilst  we  have  many  much  earlier  Charters, 
no  actual  specimen  of  a  written  Lease  has  been 
preserved  which  is  dated  earlier  than  the  beginning 
of  the  next  Century — the  Fourteenth.  But  this 
oldest  specimen  is  in  the  highest  degree  interesting 
and  instructive. 

It  is  an  agreement  or  contract  between  the 
Abbot  of  Scone  and  two  gentlemen,  father  and  son, 
whose  name  was  de  Hay  del  Leys,  for  the  Lease  of 
certain  lands  near  Perth.  The  only  peculiarity  in 

1  Hunter,  On  Landlord  and  Tenant,  p.  57.  2  Ibid.  pp.  56,  57. 


120  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

the  case  is  that  the  Monastery  of  Scone  had  itself  no 
chartered  tenure  of  those  lands.  They  were  held 
only  at  the  pleasure  of  the  King.  It  is  evident 
that  the  Monks  considered  this  pleasure  to  be  safe 
enough.  But  the  possible  contingency  of  being 
deprived  of  it  had  to  be  contemplated  and  provided 
for  in  the  Lease.  It  is  dated  1312 — two  years 
before  the  battle  of  Bannockburn.  In  many  ways 
this  document  is  remarkable.  In  the  first  place,  its 
business-like  and  definite  legal  form  indicates  clearly 
enough  that,  although  it  happens  to  be  the  first  of 
these  Covenants  which  survives,  it  must  have  been 
drawn  out  on  principles  and  on  practices,  if  not 
in  a  form,  which  had  been  long  familiar.  There 
could  not  be  a  better  example  of  the  undivided 
powers  then  involved  in  the  Ownership  of  land,  and 
of  the  perfect  freedom  which  governed  the  relations 
between  those  who  desired  to  let,  and  those  who 
desired  to  hire,  the  exclusive  right  of  cultivation. 
Moreover,  it  is  remarkable  in  this — that  the  terms 
of  the  contract  are  in  their  nature  those  which  have 
come  to  be  designated  as  an  "  Improvement  Lease  " 

—that  is  to  say,  a  Lease  under  the  terms  of  which 
the  Lessee  was  only  too  glad  to  execute  improve- 
ments upon  the  land,  and  to  pay  for,  and  out  of, 
the  increasing  produce  some  specified  share  of  that 
increase  in  the  form  of  rent.  He  was  not  bound  to 
improve,  but  it  was  assumed  that  he  would  do  so 
from  self-interest.  On  this  assumption  be  was  bound 
to  pay  an  increasing  rent — the  steps  of  increase, 

however,  being  fixed  and  definite.     In  order  to  pay 


THE  AGE  OF  COVENANTS.  121 

this  increase  he  would  need  to  increase  the  produce. 
There  was  no  other  compulsion  in  this  particular 
case.  But  it  was  enough.  In  the  loose  language  of 
modern  agitation  the  Tenant  would  have  to  pay  this 
increase  "upon  his  own  improvements. %  But  574 
years  ago  men  understood  the  principles  of  business 
better.  The  Tenants  felt  and  knew  that "  their  own 
improvements"  had  to  be  made  "upon,"  and  out  of, 
materials,  and  opportunities,  and  guarantees,  which 
were  not  "their  own,"  but  came  from  other  men. 
All  these  came  from  the  Owner  of  the  soil.  They 
constituted  a  kind  of  Capital  which  the  Tenants  did 
not  possess,  and  it  was  in  the  nature  of  that  Capital 
to  yield  a  very  large  return  to  certain  kinds  of 
labour, — provided  always,  and  provided  only,  that 
the  tenants  got  the  assurance  and  security  of  posses- 
sion exclusive  of  all  other  men.  But  this  security 
and  exclusiveness  could  only  be  got  by  bargain  with 
the  Owners.  Therefore  the  Tenants  felt  that  their 
own  improvements  could  only  be  "  their  own "  in 
part,  seeing  that  another  great  part  of  the  result 
must  be  derived  from,  and  be  due  to,  the  Owner. 
To  him,  accordingly,  the  cultivating  Tenants  were 
always  ready  to  render  back  in  rent  some  stipulated 
share  of  any  resulting  increase.  In  calculating 
what  that  share  might  be,  time  was  an  all-important 
element.  On  the  length  of  exclusive  enjoyment 
must  depend  the  share  of  increased  produce  which 
could  be  afforded.  In  this  case  the  term  was 
for  thirty  years.  The  rent  was  to  begin  at  two 
merks  for  two  years ;  to  rise  to  three  merks  the 


122  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

third  year,  and  so  on,  one  merk  more  for  each  year 
till  the  sixth.  Then  for  the  six  following  years  it 
was  to  remain  at  six  merks — that  is,  until  the  end 
of  the  twelfth  year.  Then  for  the  eight  following 
years  to  the  end  of  the  twentieth  year  the  rent  was 
to  be  eight  merks  ;  and  then  for  the  ten  remaining 
years  of  the  term  it  was  to  be  ten  merks.  Besides 
this  rent  they  were  to  grind  their  corn  at  the  Mill 
of  the  Convent,  and  to  pay  the  usual  dues  on  this 
necessary  service.  They  were  to  be  at  liberty  to 
cut  fuel  (peat)  on  the  farm  ;  but  for  their  own  use 
only,  and  were  strictly  prohibited  from  selling  it. 
The  Convent  retained  its  right  to  pasture  its  cattle 
on  the  common  grazing,  and  to  cut  fuel  on  "  the 
moors  and  marshes "  when  they  shall  have  need. 
The  Tenants  were  further  bound  to  build  on  the 
farm  competent  buildings  for  themselves  and  their 
husbandmen,  which  they  were  to  leave  so  built  at 
the  end  of  their  term ;  and,  finally,  in  case  of  the 
Convent  losing  the  land  by  any  revocation  of  the 
royal  gift  under  which  alone  they  held  it,  the 
Tenants  were  held  bound  to  leave  the  farm  along 
with  their  Husbandmen,  and  with  this  specified  com- 
pensation, namely,  the  abatement  of  one  year's  rent 
for  the  year  in  which  they  might  be  so  dispossessed. 
But  the  teachings  of  this  Lease  are  so  many  and  so 
important  that,  as  in  the  case  of  the  early  Charters, 
I  think  it  best  to  present  it  to  my  readers  in 
full :— 


THE  AGE  OF  COVENANTS.  123 

(Translation.") 

AGREEMENT  between  the  ABBOT  OF  SCONE  and 
EDMUND  OF  HAY  DEL  LEYS  and  WILLIAM,  his 

Son  (1312). 

IN  the  year  of  grace  1312  was  made  this  agreement 
between  religious  men.  Lord  Thomas  by  the  grace 
of  God  Abbot  of  Scone,  and  convent  of  the  same 
place,  on  the  one  part,  and  Edmund  de  Hay  del 
Leys  and  William  his  son,  on  the  other  part, 
namely,  that 

The  said  Abbot  and  convent  have  granted  and  to 
farm  (rent)  let  all  their  land  of  Balgarvi,  with  all 
pertinents,  and  their  right  marches, 

With  which  husbandmen  were  wont  to  hold  the 
same  land  to  farms  (rent) 

To  the  said  Edmund  and  William  his  son,  and 
the  heirs  of  the  said  William  of  his  own  body 
lawfully,  directly,  immediately,  lineally,  and  not 
collaterally  to  be  procreated,  and  descending  until 
the  term  of  thirty  years  following  fully  complete. 

Paying  therefor  yearly  the  said  Edmund,  William 
his  son  and  the  heirs  of  the  said  William,  to  the 
said  Abbot  and  convent,  the  first  year  two  merks 
of  good  and  legal  sterlings,  namely,  one-half  at  the 
feast  of  Whitsunday,  and  the  other  half  at  the  feast 
of  St.  Martin,  in  winter  :  the  second  year,  two 
merks  at  the  terms  before  noted ;  the  third  year, 
three  merks ;  the  fourth  year,  four  merks ;  the  fifth 
year,  five  merks  ;  the  six  year,  six  merks :  and  for 
the  six  years  immediately  following,  namely,  till 


124  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

the  end  of  the  twelfth  year,  they  shall  pay  six 
merks  every  year  at  the  terms  before  mentioned, 
and  for  eight  years  immediately  following,  viz., 
till  the  end  of  the  twentieth  year,  they  shall  pay 
eight  merks  every  year ;  and  for  ten  years  im- 
mediately following,  viz.,  till  the  end  of  the 
thirtieth  year,  they  shall  pay  ten  merks  every  year 
of  good  and  legal  sterlings,  at  the  terms  before 
noted. 

The  term  of  entry  of  the  said  Edmund  and 
William  to  the  said  land  beginning  at  the  feast  of 
Whitsunday,  the  year  of  our  Lord  1313  ;  the  term 
of  their  first  payment  beginning  at  the  feast  of 
Whitsunday  the  year  of  grace  1313. 

And  the  foresaid  Edmund,  William,  and  heirs  of 
the  said  William,  shall  do  suit  at  the  court  of  the 
Abbot  three  times  in  the  year,  at  the  three  head 
pleas,  their  husbandmen  shall  do  suit  at  all  the 
pleas  of  the  said  Abbot,  to  be  held  within  the 
barony  of  Scone. 

And  the  said  Edmund,  William,  and  heirs  of  the 
said  William  shall  come  to  the  Mill  of  the  said 
Abbot  and  convent  of  Kyncarroqui  with  all  kind 
of  corn  growing  on  the  said  lands  of  Balgarvy,  which 
they  shall  grind  for  their  sustenance,  and  shall 
there  give  the  twenty-fourth  "  vas  "  (peck)  for  all- 
saving  the  right  of  those  that  serve  at  the  mill  (as 
knaveship)  : 

And  their  men  and  husbandmen  and  their  cottars 
shall  give  the  sixteenth  "  vas  "  (  =  peck)  of  all  kinds 
of  corn  growing  on  the  said  lands  of  Balgarvi,  as 


THE  AGE  OF  COVENANTS.  125 

the  other  husbandmen  and  natives  of  the  said  Abbot 
and  convent : 

Also  both  they  and  their  tenants  shall  do  towards 
the  preparation  and  upholding  of  the  said  mill  in  all 
things  as  other  husbandmen  in  the  neighbourhood. 

And  the  said  Edmund,  William,  and  heirs  of 
the  said  William,  shall  do  the  forinsec  service  of 
our  Lord  the  King  so  much  as  pertains  to  the  said 
land,  and  they  shall  sustain  all  other  burdens  in 
any  manner  of  way  touching  the  said  land  till  the 
end  of  their  term  foresaid. 

And  the  said  Edmund,  William,  heirs  of  the  said 
William,  and  their  men  dwelling  on  the  said  land  of 
Balgarvi  shall  take  fuel  from  the  common  for  their 
own  use  only,  neither  shall  they  sell  therefrom,  give 
or  alienate  in  any  other  way,  unless  from  their 
arable  land,  which  it  shall  be  lawful  to  them  thence 
to  take,  give  and  sell. 

Reserving  to  the  said  Abbot  and  convent  and 
their  successors  in  the  common  pasture  of  the  said 
lands  the  usufruct  for  their  animals  ;  in  moors  and 
marshes  for  taking  fuel  when  they  shall  have  need. 

And  if  disputes,  trivial  and  not  grave,  shall  arise 
among  the  men  of  the  said  Edmund,  William,  and 
the  heirs  of  the  said  William,  they  shall  decide  and 
correct  them  among  themselves,  but  if  there  shall  be 
greater  differences,  and  pertaining  to  the  lordship, 
such  ought  to  be  reserved  for  the  court  of  the  lord 
Abbot,  there  justly  to  be  determined  : 

Reserving  in  everything  the  lordship  to  the  said 
lord  Abbot :  And  the  said  Edmund  and  William 


126  SCOTLAND  AS  IT  WAS  AND  AS  TT  IS. 

and  heirs  of  the  said  William  are  bound,  without 
dissimulation,  to  agree  to  the  counsel  and  assistance 
of  the  said  Abbot  and  convent  when  required. 

And  if  our  Lord  the  King  shall  happen  to  revoke 
the  gift  of  the  said  land  from  the  said  Abbot  and 
convent,  the  said  Edmund,  William,  heirs  of  the 
said  William,  and  their  husbandmen,  shall  quit 
without  paying  the  rent  of  the  year  of  their 
quitting. 

And  the  said  Edmund,  William,  and  heirs  of  the 
said  William,  shall  cause  to  be  constructed  on  the 
said  land  of  Balgarvi  competent  buildings  for  them- 
selves and  their  husbandmen,  which  they  shall  leave 
so  built  at  the  end  of  their  term. 

In  witness  whereof  ..... 

the   common   seal  of  the    chapter  of   Scone  is  ap- 
pended, and  the  seals  of  the  foresaid  Edmund  and 
.William  are  appended. 

This  Lease  exhibits  all  the  essential  features  of 
the  contracts  between  free  men  for  the  hire  of  land 
which,  down  to  our  own  time,  have  for  the  long  period 
of  more  than  550  years  prevailed  in  Scotland,  and 
which,  the  moment  domestic  peace  and  security 
returned  to  any  portion  of  the  land,  resulted  in  an 
extent  and  a  rapidity  of  agricultural  improvement 
which  has  never  been  surpassed  in  any  country. 
The  secret  of  the  success  of  these  Covenants  lies  in 
their  definiteness,  and  with  their  definiteness,  in 
their  justice.  The  particular  stipulations  might  vary 
infinitely  according  to  the  nature  of  the  subject  let. 


THE  AGE  OF  COVENANTS.  127 

The  term  of  years  might  vary  from  five  to  nineteen, 
or  thirty,  or  the  term  might  be  for  a  life,  or  lives. 
There  might  or  there  might  not  be  a  bargain  about 
improvements.  It  depended  obviously  on  the 
cheapness  or  dearness  of  the  rent  whether  improve- 
ments would  or  would  not  be  remunerative  within 
a  given  time,  and  without  any  other  compensation 
than  that  secured  by  the  increased  production  arising 
out  of  them.  This,  too,  was  generally  a  matter  of 
express  stipulation.  In  the  Lease  now  referred  to, 
the  houses  built  were  to  be  left  without  any  com- 
pensation. Probably  the  houses  of  that  time  were 
made  of  turf  and  wattles.  But  in  many  other 
cases  the  Leases  provided  for  the  payment  of  what 
were  called  "  meliorations  "-  —that  is,  for  the  value 
of  improvements  of  a  special  kind.  Sometimes 
they  provided  for  an  optional  "  break"  in  the  Lease 
at  seven  years,  or  some  other  period  short  of  the 
full  term,  and  specified  that  the  "meliorations" 
should  be  due  to  the  Tenant  only  if  his  enjoy- 
ment ended  at  the  shorter  term,  and  should  be 
extinguished  if  it  lasted  to  the  end.  He  could 
thus  calculate  securely  how  far  his  outlay  would  be 
returned.  Again,  as  regards  another  great  source 
of  value  in  the  Middle  Ages — namely,  dues  in  the 
form  of  labour — there  might  or  there  might  not  be 
an  exaction  of  services  in  labour,  besides  a  rent  in 
money  or  in  produce.  But  the  one  essential  feature 
in  all  such  lettings  by  Lease  was  that  every  stipula- 
tion was  as  definite  and  precise  as  possible.  Both 
parties  knew  exactly  what  they  were  agreeing  to. 


128  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

If  services  were  included,  the  amount  and  nature 
of  the  work  to  be  done  were  generally  specifically 
mentioned.  Already,  in  the  previous  century,  the 
Thirteenth,  we  find  from  the  Rental  of  the  great 
Abbacy  of  Kelso,  that  the  Monks  had  introduced 
the  same  principle  of  definiteness  and  precision  into 
their  arrangements,  even  with  their  Husbandmen, 
who  had  no  Leases,  but  who  were  only  Tenants  at 
Will. 

It  is  to  be  observed,  however,  that  these  Cove- 
nants were  strictly  confined  to  the  relations  between 
the  Owner  and  the  Tenant,  or,  as  the  Lease- holding 
tenant  came  to  be  called  in  Scotland,  the  "  Tacks- 
man," — "  Tack  "  being  the  name  for  a  Lease.  No 
notice  whatever  was  taken  in  most  of  these  Leases 
of  any  class  of  men  subordinate  to  the  Lease-holder 
or  Tacksman.  The  full  powers  of  exclusive  posses- 
sion for  the  purposes  of  cultivation  which  the  Owner 
enjoyed,  as  a  necessary  part  of  Ownership,  were  lent 
or  granted,  on  the  stipulated  conditions  and  for  a 
given  time,  to  the  Lessee  who  hired  them.  He  had 
full  power  over  all  inferior  or  subordinate  occupiers, 
if  any  such  existed.  In  the  case  of  this  earliest 
extant  Lease,  given  by  the  Abbot  of  Scone,  we  have 
some  very  clear  and  very  interesting  intimations  on 
this  matter,  which  is  one  of  the  highest  historical 
importance.  In  the  first  place,  we  learn,  that  the 
land  or  Farm  which  was  granted  on  Lease  to 
Edmund  and  William  de  Hay  del  Leys  had  pre- 
viously been  rented  by  Husbandmen,  or  actual 
cultivators,  who  "  were  wont  to  hold  the  same  land 


THE  AGE  OF  COVENANTS.  129 

to  farms"  (or  rent).  It  is  certain  from  this  recorded 
fact,  that  when  these  lands  were  granted  to  the 
Abbey,  this  grant  (until  revoked)  was  not  merely  a 
grant  of  a  rent  charge,  or  a  mere  grant  of  grazing, 
but  a  grant  of  such  undivided  Ownership  as  in- 
volved the  right  of  the  Abbot  to  re-let  the  land  to 
whom  he  would.  The  former  "  Husbandmen"  were 
therefore  not  Serfs  or  Bondmen,  who  were  irremov- 
able from  the  soil ;  neither  were  they  free  Tenants 
with  any  rights  of  occupation  which  prevented  the 
land  being  withdrawn  from  them.  In  the  second 
place,  we  see  that  the  new  Leaseholding  Tenants 
were  expected,  as  a  matter  of  course,  to  bring  fresh 
Husbandmen  of  their  own,  who  are  variously  desig- 
nated as  "  their  men,"  "  their  husbandmen,"  and 
"  their  Tenants."  In  the  third  place,  we  see  that 
certain  stipulations  of  the  Lease  assume  that  over 
these  men  the  Tacksmen  had  complete  power  to 
compel  them  to  pay  certain  services  for  the  upholding 
of  the  Mill,  and  for  the  paying  of  a  higher  rate  of 
meal-tax  for  the  grinding  of  corn  than  was  to  be 
paid  by  the  Tacksmen  themselves.  It  appears  fur- 
ther that  this  obligation  in  respect  to  keeping  up  the 
Mill  was  a  common  obligation  upon  all  the  Husband- 
men of  the  neighbourhood.  Lastly,  there  is  an 
express  condition  that  the  actual  Husbandmen  or 
cultivators  were  to  remove  from  the  land  along  with 
the  Tenant  himself  at  the  termination  of  the  Lease. 
This  was  evidently  the  common  practice  and  usual 
stipulation  of  that  day.  It  was  probably  an  abso- 
lute necessity  for  the  improvement  of  the  soil  then 

VOL.  I.  I 


130  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

largely  waste.  The  native  cultivators  were  probably 
then,  as  we  shall  see  they  were  in  much  later  times, 
wedded  to  barbarous  usages,  or  too  ignorant  and 
too  poor  to  be  improvers.  They  might  or  they 
might  not  be  mere  servants  or  bondmen.  They 
were  the  "  agricolse  "  of  the  old  Chroniclers,  the 
"  bondi "  and  "  nativi "  of  the  earliest  Feudal 
Charters.  They  were  regarded  as  yearly  tenants, 
and  in  the  eastern  districts  of  Scotland  they  were 
often  the  remains  of  the  old  Celtic  population.1 
But,  whatever  their  status  was,  whether  bond  or 
free,  it  is  clear  that  they  were  not  recognised  as 
then  having,  either  by  law  or  custom,  any  right  of 
occupancy  in  restriction  or  limitation  of  the  full 
right  of  Ownership.  If  they  cultivated  any  land  at 
all  for  their  own  use,  which  in  this  case  they  were 
clearly  expected  to  do,  it  must  have  been  only  as  sub- 
tenants at  will  of  the  "  Tacksman"  or  Lessee,  and  as 
he  could  not  give  any  possession  longer  than  his 
own,  they  were  to  leave  the  farm  when  he  left  it. 
The  power  of  sub-letting  was  itself  generally  a 
matter  of  express  stipulation.  Sometimes  it  was 
specially  allowed.  Sometimes  it  was  specially  pro- 
hibited. When  there  was  no  stipulation  it  seems 
to  have  been  considered  as  allowed. 

There  is  one  other  stipulation  of  this  Lease  which 
incidentally  casts  an  important  light  on  another 
question  of  much  interest — namely,  the  exact  posi- 
tion under  such  Leases  of  the  common  grazings  of 
the  country.  We  have  seen  that  under  the  Charters 

1  Celtic  Scotland,  vol.  iii.  p.  85. 


THE  AGE  OF  COVENANTS.  131 

special  care  was  taken  to  enumerate  and  include 
every  variety  and  kind  of  surface — whether  in  woods, 
or  in  mosses,  or  in  meadows,  or  in  mountain  pastures. 
It  followed  as  a  matter  of  course,  and  indeed  of 
necessity,  that  when  portions  of  such  lands  were  let, 
and  divided  from  each  other  by  definite  "  metes  and 
marches,"  whether  these  were  natural  or  artificial, 
the  whole  surfaces  within  those  marches  were  equally 
the  subjects  of  the  Covenant.  The  grazings,  as  dis- 
tinguished from  the  comparatively  small  areas  of 
enclosed  land,  were  often  the  most  valuable  portion 
of  the  subjects  let.  They  continued  to  be  "common" 
in  one  sense  only — namely,  that  like  all  other  pastures 
in  that  time,  they  were  used  promiscuously  by  the 
Tenant  and  by  all  his  Sub-tenants  or  Husbandmen. 
But  the  Tacksman  alone  had  the  power  of  disposing 
of  them,  and  of  regulating  the  use  of  them  among 
his  subordinates.  So  absolute  and  exclusive  was 
this  power,  that  the  Chartered  Owner  himself  had 
no  right  whatever  to  use  those  pastures  after  he  had 
let  them,  unless  by  express  reservation  in  the  Lease. 
Just  as  he  parted  with  his  exclusive  right  of  posses- 
sion over  the  arable  land  in  favour  of  his  Lessee,  so 
also  did  he  part  with  his  rights  of  grazing,  except 
in  so  far  as  by  express  stipulation  he  might  reserve 
a  share.  Hence  the  clause  in  this  Lease  which 
expressly  reserved  to  the  Monastery  their  right  to 
pasture  their  cattle  upon  the  common  grazings  of 
the  farm  of  Balgarvie.  The  word  " common"  referred 
to  the  method  of  use,  not  at  all  to  the  principle  of 
tenure.  It  was  assumed  that  the  Lessee  would 


132  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

have  as  complete  power  to  exclude  the  cattle  of 
the  Owner  as  to  exclude  the  cattle  of  all  other  men, 
unless  the  Owner  took  care  to  preserve,  or  to  reserve, 
some  portion  of  his  own  rights  in  this  matter. 

At  this  time,  it  is  to  be  observed,  the  principles 
embodied  in  the  Lease  rested  on  no  special  legisla- 
tion, but  on  the  much  stronger  foundation,  first,  of 
the  acknowledged  rights  involved  in  Ownership,  as 
these  had  come  to  be  developed  through  the  course 
of  many  centuries,  and  secondly,  of  the  correlative 
right  of  all  Owners  either  to  sell  or  to  let  their  pro- 
perty to  any  men,  and  on  any  conditions,  whether 
of  purchase,  or  of  hire.  All  Charters,  as  we  have 
seen,  had  taken  these  rights  for  granted,  and  they 
had  grown  up  so  naturally  and  so  reasonably,  and 
so  much  as  a  matter  of  necessity,  that  they  required 
neither  definition  nor  support.  Moreover,  it  is  quite 
certain  that  as  we  have  traced  the  spirit  of  precision 
which  more  and  more  o-overned  the  form  of  Charters 

O 

to  the  influence  of  the  Latin  Church  and  the  prin- 
ciples of  the  Roman  Law,  so  it  is  even  more  certain 
that  the  same  spirit  as  applied  to  Leases  was  derived 
from  the  same  copious  fountain  of  all  the  elements 
of  Justice  and  of  Civilisation. 

Under  the  Republic  land  was  constantly  let  on 
hire,  and  the  Contracts  of  Leases  were  among  the 
most  familiar  of  all  legal  instruments.  No  actual 
copy  has  survived,  but  the  leading  stipulations  are 
accurately  known.  They  regulated  the  rent,  which 
was  fixed  or  definite,  either  in  money,  or  in  produce, 
or  in  service.  They  regulated  the  duration  of  the 


THE  AGE  OF  COVENANTS.  133 

tenancy,  which  was  always  definite  also,  and  often 
short — most  commonly  not  more  than  five  years. 
They  regulated  also  the  devolution  of  the  Lease  to 
certain  Heirs.  They  regulated,  moreover,  the  kind 
of  husbandry  and  the  succession  of  crops — so  as  to 
secure  the  Owner  against  the  losses  which  so  often 
arise  to  Owners  from  the  misuse  of  their  property  by 
bad  husbandry.  They  regulated  also  the  power  of 
sub-letting.  There  was,  in  short,  under  the  noble 
jurisprudence  of  the  noblest  people  that  have  ever 
ruled,  perfect  freedom  of  contract  between  Free 
Owners  and  the  Free  Hirers  of  Land. 

Under  the  Empire  the  number  of  Leases 
declined,  because  Freedom  declined  also,  and  the 
number  of  Free  Men.  It  had  already  become  more 
and  more  the  custom  to  cultivate  great  estates  by 
Slaves.  They  of  course  did  not  hold  under  contract, 
nor  were  the  dues  they  paid  in  the  nature  of  a  rent. 
They  were  allowed  to  keep  certain  portions  of  the 
produce — enough  to  sustain  their  life,  and  to  suit 
their  servile  status  ;  but  nothing  near  the  proportion 
of  the  total  produce  which  fell  to  the  lot  of  Free 
Tenants  under  the  system  of  Covenants.  More  and 
more  as  the  Free  Population  of  Italy  became 
exhausted  by  constant  and  decimating  wars,  this 
system  of  great  extents  of  country  cultivated  by 
Slaves  extended  itself,  and  was  the  symptom  rather 
than  the  cause  of  evils  which  were  sapping  the 
foundations  of  the  Empire.  It  was  to  this  system 
that  Pliny  referred  when  he  spoke  of  "  Latifundia  " 
as  having  "  rained  Italy."  By  a  most  ignorant 


134  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

perversion  of  historical  truth,  this  passage  has  been 
quoted  over  and  over  again  as  applicable  to  large 
Estates  in  modern  Europe,  and  especially  in  Scotland. 
Yet  the  two  systems  of  management  were  not  only 
different  in  their  origin  and  in  their  nature,  but  they 
were  the  antithesis  of  each  other.    Slavery  never  did 
exist  in  modern  Europe  on  the  scale  or  of  the  char- 
acter which  prevailed  in  the  Roman  Empire.     There 
was,  indeed,  Serfdom  and  Bondage,  and  as  we  have 
seen    there    were    a   few  scattered   and   individual 
cases  in  which  the  sale  and  purchase  of  individual 
Serfs  with  their  families  were  just  enough  to  show 
how  easily  under  less  happy  auspices  the  institutions 
of  Serfdom  might  have  passed  into  genuine  Slavery. 
But    the    line    of    movement   in    society   was    not 
towards  the  extension,  but  towards  the  extinction 
of  it.     The  greatest  of  all  Landowners,  as  we  have 
seen,  the  Church,  worked  steadily  against  it.     All 
other  Landowners  followed  in  their  wake,  and  before 
the  end  of  the  century  in  which  the   two    Hays 
received  their  Lease  from  the  Abbot  of  Scone,  Serfs 
and    Bondmen   had    practically    disappeared    from 
Scotland,  and  the  system  of  free   Tenants  holding 
under  free  Covenants  had  become  the  established 
usage  of  the  country. 

Those  who  mistake  or  mis-state  the  facts  on 
this  great  question  of  the  comparative  extent  and 
on  the  comparative  character  of  Slavery  in  the  old 
Heathen  and  in  the  modern  Christian  world,  are 
either  ignorant  or  careless  of  a  distinction  which  is 
fundamental  to  all  right  understanding  of  the 


THE  AGE  OF  COVENANTS.  135 

history  of  Mankind.  Some  of  those  facts  are  indeed 
so  strange  to  all  we  have  either  seen  or  heard  of 
since  the  Christian  era  that  they  seem  hardly 
credible.  At  least  it  is  most  difficult  for  us  to 
realise  the  conditions  of  society  which  are  authen- 
tically known  to  have  prevailed  in  the  Roman 
Empire,  or  even  in  the  later  days  of  the  Republic. 
Slavery  was  at  the  root  of  everything.  It  was  the 
basis  of  society  so  far  as  all  labour  was  concerned. 
Some  rich  men  possessed  as  many  as  20,000  Slaves, 
the  majority  of  whom  were  Field  Labourers. 
Crassus  is  said  to  have  had  500  "  head  "  alone  as 
his  corps  of  builders  and  carpenters.1  Slaves  are 
said  to  have  been  as  three  to  one  of  the  whole  free 
population  at  the  opening  of  the  Christian  era,  and 
for  200  years  later.  So  early  as  the  times  of  the 
Gracchi  they  were  displacing  the  free  rural  popula- 
tion, whether  small  proprietors  or  free  labourers. 
Nor  did  this  great  curse  affect  the  rural  districts 
only.  Freemen  were  crowded  out  of  the  Towns,  as 
well  as  out  of  the  fields,  by  swarms  of  Slaves. 
Their  labour  was  displaced,  and  their  number 
diminished.  Little  more  than  a  century  after  the 
death  of  Pliny,  agriculture  had  so  declined  that 
Italy  could  no  longer  support  its  own  population, 
and  the  Emperor  Commodus  organised  a  regular 
fleet  of  vessels  so  large  as  almost  to  correspond  to 
our  modern  idea  of  a  "  Liner,"  by  which  the  harvests 
of  other  lands  might  be  carried  to  the  Tiber.2 

1  The  Gentile  and  the  Jew,  by  Dr.  Dbllinger,  Eng.  Trans.,  vol.  ii.  p.  262. 

2  See  Dissertation  on.  the  "  Ships  of  the  Antients  "  in  the  Voyage  and 
Shipwreck  of  St.  Paul,  by  Jas.  Smith  of  Jordanhill,  2<l  ed.,  1856,  p.  173. 


136  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

Rome  came  to  be  supplied  in  abundance  with  corn 
from  Carthage  and  from  Alexandria,  from  Palermo 
and  from  Cadiz,  and  from  all  the  ports  of  the  world 
accessible  to  the  great    grain  ships — from  1000  to 
1300   tons   burden — which  were    employed  in  the 
trade.      The  free  farmers  and  free  labourers  were 
thus  undersold  from  abroad,  whilst  at  the  same  time 
they  were  undersold  at  home  by  the  cheap  labour 
of  slaves  who  were  exempt  from   military  service. 
These   were   spread   over  large    tracts  of  country. 
The   free    population    disappeared.      This   was   the 
cause,  and  this  was  the  nature  of  the   evil  which 
was   denounced   in  the  word   "  Latifundia."      The 
most  learned  man,  perhaps,  now  existing  in  Europe 
has  examined  this  subject  with  the  conscientious 
care  which  is  always  equal  to  his  great  resources. 
He  shows  how  Slavery  had    undermined  Freedom 
not  only  by  way  of  the  displacement  of  labour,  but 
by  way  of  the  corruption  of  opinion.     Even  in  the 
mind   of  such  a  man  as  Cicero,  it   had  stamped   as 
servile  and  unworthy  a  multitude  of  employments, 
which  in  themselves  are  as  noble  as  any  other  forms 
of  industry.      "  It  was    thus,"  says   Dr.  Dollinger, 
"  the  sturdy,  industrious  middle  class  was  lost  to 
Home.     The  free  population  consisted  of  proletarii, 
living  in  republican  times  by  the  sale  of  their  votes, 
and  under  the  Emperors  upon  the  public  distribu- 
tion of  money  and  corn  ;  degraded  and  demoralised 
they  were    despised   by   the    rich   and    assimilated 
more  and  more  to  Slavery.   .   .   .   The  Roman  people 
was,    though     Slavery    diminished,    depraved,    and 


THE  AGE  OF  COVENANTS.  137 

utterly  changed  to  its  heart's  core.  The  genuine 
plebeian  stock  had  in  reality  ceased  to  exist. 
Already  by  150  B.C.,  Scipio  ^Emilianus  had  taunted 
the  grumbling  populace  with  the  assurance  that  he 
should  never  tremble  before  those  whom  he  had 
himself  brought  in  chains  to  Rome.  It  was  not  the 
'  Latifundia,'  as  Pliny  thought,  but  Slavery  that 
had  ruined  Italy  :  had  the  Latifundia  been  peopled 
by  Free  Tenants  the  consequences  would  have 
been  different."1 

This  difference  between  the  Roman  Slaves  and 
the  Free  Tenants  of  modern  Europe  is  a  difference 
indeed.  To  confound  the  Latifundia  of  Pliny's  time 
with  the  great  Estates  of  Mediaeval  Barons  is  a 
blunder  which  is  excusable  in  platform  orators,  to 
whose  speeches  the  quotation  of  one  Latin  sentence 
gives  a  tinge  of  learning.  But  it  is  inexcusable  in 
men  who  care  for  sound  reasoning,  or  for  the  truth 
of  History.  In  no  part  of  modern  Europe  did  the 
evils  of  the  Roman  Latifundia  arise.  In  no  part 
of  it  were  they  even  possible.  But  in  Scotland 
perhaps  more  than  in  any  other  country,  the  holders 
of  great  Estates  at  this  time  were  the  Leaders  of  the 
Nation  not  less  in  the  progress  of  civilisation  than 
they  had  been  in  winning  National  independence. 
It  has  been  well  said  both  of  the  New  Owners  and 
of  the  Old  Owners  with  a  new  title,  that  they  were 
of  the  progressive  party.  Their  own  interests, 
their  own  powers,  their  own  aspirations — all  com- 

1  The   Gentile  and  the  Jew,   by  Dr.   Dollinger,   Eng.   Trans.,  vol.  ii. 
p.  270. 


138  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

bined  to  make  them  so.  Their  territorial  posses- 
sions could  not  be  used  except  by  sharing  them 
with  others.  Parts  they  granted  in  "Feu-farm"  to 
kinsmen,  to  friends,  and  to  retainers.  Parts  they 
let  to  Tacksmen  on  different  conditions  of  Lease. 
On  parts  they  kept  the  native  Husbandmen,  sup- 
plementing their  resources  by  lending  them  seed, 
cattle,  and  other  stock;  whilst  again  other  portions 
of  their  land  they  cultivated  themselves  by  hired 
labourers.  The  whole  of  these  were  Free  Men, 
constituting  a  gradation  of  classes,  founded  on  free- 
dom, and  manly  dealings  with  each  other  between 
diverse  ranks.  All  this  was  the  very  converse  of 
the  processes  and  causes  which  ruined  Italy.1  The 
nearest  type  and  image  of  them  in  the  world  which 
arose  on  the  ruins  of  the  Roman  system,  is  to  be 
found  not  in  the  great  Baronies  or  Estates  which 
were  chartered  with  us  in  the  Twelfth  and  Thir- 
teenth Centuries,  but  in  the  territories  which  were 
then  still  subject  to  those  unwritten  usages  of  Celtic 
Feudalism  which  Chartered  rights  of  Ownership 
had  happily  superseded.  That  older  and  ruder 
Feudalism,  had  been  from  the  beginning  largely 
founded  upon  Bondage,  and  it  still  subjected  men 
who  were  nominally  free  to  arbitrary  exactions,  so 
vague,  so  various  and  so  enormous,  that  it  was 
impossible  to  calculate  on  the  secure  enjoyment  of 

1  The  truth  is,  that  the  context  of  the  passage  in  Pliny,  which  is  so 
often  and  so  ignorantly  quoted,  shows  that  it  has  no  bearing  on  the 
subject.  Pliny  is  clearly  speaking  and  thinking  of  the  amount  of  land, 
or  size  of  farm  which  a  man  can  well  manage  and  cultivate  on  his  own 
account. 


THE  AGE  OF  COVENANTS.  139 

the  fruits  of  industry.  The  change  which  took 
place  in  the  passage  from  these  usages  to  such 
written  Covenants  as  that  which  we  have  examined, 
was  a  change  as  deep  and  searching  as  it  was 
beneficent. 

Accordingly  we  find  that  everywhere  over  the 
whole  of  Europe  the  influence  of  the  Latin  Church 
led  to  a  return  to  those  better  and  earlier  practices 
of  the  Roman  people  which  consisted  in  the  letting 
of  land  to  Free  Tenants  under  Covenant,  and  which 
had  never  ceased  to  be  recognised  and  sanctioned 
under  their  noble  jurisprudence.  Probably  even  in 
the  worst  of  times  it  had  never  wholly  ceased,  for 
there  must  have  been  many  places  and  many  circum- 
stances in  which  Slaves  could  not  be  found,  or  could 
not  be  trusted  to  be  the  sole  cultivators  of  landed 
property — especially  when  that  property  lay  in 
distant  Provinces  of  the  Empire.  Thus  we  know 
that  the  Sicilian  Estates  of  the  feeble  Rulers  who 
still  represented  the  Western  Empire  among  the 
marshes  of  Ravenna,  were,  in  the  middle  of  the  Fifth 
Century,  let  to  Free  Tenants  on  Leases  with  all  the 
definite  covenants  usual  in  modern  Estates.1  As 
we  advance  towards  the  Middle  Ages,  we  see  that 
the  Lessees  of  all  ecclesiastical  lands  were  generally 
free,  cultivators ;  and  towards  the  end  of  the 
Thirteenth  Century  we  have  a  French  Treatise  on 
the  customs  of  a  portion  of  that  country,  from  which 
it  appears  that  lands  were  let  under  precisely  the 
same  word  used  in  Scotland  about  the  same  time — 

1  Hunter,  On  Landlord  and  Tenant,  ed.  1876,  vol.  i.  p.  32. 


140  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

namely,  the  word  "  ferme  " — meaning  a  fixed  rent 
agreed  to  upon  a  series  of  fixed  conditions.1  In 
Germany  the  progress  of  events  was  not  so  steady 
in  this  direction.  Serfdom  lasted  longer.  There 
were  stupid  and  antiquated  limitations  of  land  to 
particular  classes,  and  there  was  a  fatal  preference 
of  old  usages,  which  are  always  tending  to  abuse, 
over  perfect  freedom  and  definite  agreements 
between  free  men,  which  are  always  open  to  re- 
adjustment. These  were  undoubtedly  among  the 
causes  which  led  to  the  fall  of  Prussia.  She  did  not 
recover  till  means  had  been  taken  to  abolish  the 
abuses  of  a  traditional  and  unwritten  Feudalism. 
And  it  is  remarkable  that  when  Stein  was  studying 
the  reforms  which  he  afterwards  promoted,  he  took 
as  his  model,  and  as  the  goal  at  which  he  aimed, 
those  happier  developments  of  Feudalism  under 
An^lo-Saxon  and  Scoto-Roman.  law  which  he  saw 

o 

established  in  Great  Britain. 

We  strike  deep,  then,  into  the  very  roots  of 
modern  history,  and  into  the  very  sources  of  our 
civilisation,  when  we  examine  all  that  is  implied  in 
this  Lease  given  by  the  Abbot  of  Scone  in  the 
earliest  years  of  the  reign  of  King  Robert  the  Bruce. 
Like  the  Charters  it  may  be  said  that  Leases  rose 
out  of  the  ground,  and  grew.  They  were  far  more 
deeply  founded  than  on  any  local  legislation.  They 
sprung  from  the  seeds  of  freedom,  sown  in  the  fruitful 
soil  of  Roman  Law,  and  trained,  as  regarded  their 
form  and  development,  under  the  conscientious  direc- 

1  Hunter,  On  Landlord  and  Tenant,  ed.  187G,  pp.  34,  35. 


THE  AGE  OF  COVENANTS.  141 

tion  of  the  Latin  Church.  Nay,  it  may  even  be  said 
with  truth  that  the  original  source  of  these  Covenants 
lay  deeper  still.  For  the  foundations  of  morality  are 
the  common  property  of  all  mankind.  The  obliga- 
tion of  a  promise  is  an  elementary  obligation.  The 
faith  of  Covenants  is  universally  recognised  as  a  faith 
which  cannot  be  denied.  Strange  to  say,  the  value 
of  it  to  society  has  never  been  more  picturesquely  or 
forcibly  described  than  by  the  oldest  known  code  of 
Celtic  Laws.  For  in  the  "  Brehon  Laws"  we  are 
told  that  "there  are  three  periods  at  which  the  word 
is  worthless :  the  time  of  a  plague,  the  time  of  a 
general  war,  the  dissolution  of  express  contracts."1 

Sir  Henry  Maine  has  referred  with  some  incre- 
dulity to  this  sentence  as  seeming  very  like  a  later 
introduction.2  In  this  I  venture  to  disagree  with 
him.  The  whole  method  of  expression  is  thoroughly 
Celtic.  The  words  translated  "  express  contracts  " 
do  not  accurately  convey  the  meaning  of  the 
original,  and  might  suggest  to  our  ears  the  idea  of 
written  documents.  This  would  indeed  savour  of  a 
later  age, — of  formal  "  deeds"  and  parchments.  But 
the  Celtic  words  here  used  are  full,  on  the  contrary, 
of  that  archaic  time  when  there  was  nothing  more 
binding  than  the  spoken  word — the  promise  of  the 
mouth, — accompanied  or  unaccompanied  by  some 
symbolic  act.  Accordingly,  the  Celtic  words  used 
in  this  passage  of  the  Brehon  Laws,  which  have 
been  rendered  by  the  English  words  "  express  con- 

1  Celtic  Scotland,  vol.  ii.  p.  75  ;  Ancient  Laws  of  Ireland,  vol.  i.  p.  51. 
-  Early  History  of  Institutions,  pp.  56,  57. 


142  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

tract,"  specify  the  method  of  expression  as  the  oral 
method — "contracts  made  by  word  of  mouth."1 
I  find,  moreover,  that  there  are  some  idiomatic 
phrases  in  the  Scottish  Gaelic  in  which  the  same 
word  "Cor"-— not  now  in  common  use — is  still 
retained  as  expressive  of  a  possessory  right  in  the 
strongest  possible  sense.  A  Highlander  will  say, 
pointing  to  something  which  he  thinks  belongs  to 
him,  "  that  is  cor  to  me,"  meaning,  "  that  is  my 
right."  The  whole  passage,  therefore,  instead  of 
having  a  modern  aspect,  is  redolent,  on  the  contrary, 
of  very  archaic  times.2  There  can  be  little  doubt, 
indeed,  that  those  who  wrote  it  were  not  thinking 
of  Covenants  about  what  we  call  the  hire  of  land. 
But  there  can  be  just  as  little  doubt  that  they 
were  thinking,  and  must  have  had  familiarly  in 
their  minds,  Covenants  about  the  possession  of 
cows,  and  about  the  grazing  of  them,  and  about 
the  division  of  their  calves,  and  about  the  sharing 
of  their  milk,  and  generally  about  the  services 
which  men  were  willing  to  promise  to  each  other, 
for  any  and  every  kind  of  benefit  rendered  to 
themselves.  All  this  is  the  same  thing.  Just  as 
cattle  stood  in  the  place  of  capital  in  those  early 
days,  so  did  they  stand  in  the  place  of  farms,  and 
all  bargains  between  man  and  man  about  them  were 
fundamentally  the  same  as  the  bargains  which  were 

1  The  Celtic  words  are  "ftiaslucad  cor  rnbe'l,"  literally  "loosening  of 
contracts  of  month." 

2  My  information  on  this  point  of  language  is  dne  to   the  kindness  of 
Mr.   Whitley  Stokes,  the  greatest  living  authority  on  Celtic  literature, 
and  as  regards  Gaelic,  of  Mr.  Macpherson,  minister  of  Inveraray. 


THE  AGE  OF  COVENANTS.  143 

made  in  later  times  about  the  share  of  cattle,  or  of 
other  produce  which  was  commuted  into  various 
forms  of  rent.  The  introduction  of  this  passage, 
therefore,  into  the  Brehon  Laws  does  not  necessarily 
indicate,  or  even  naturally  suggest,  any  foreign 
element  other  indeed  than  those  earliest  echoes  of 
Celtic  Christianity  in  which  we  hear  the  mission- 
aries of  the  New  Testament  repeating  and  enforcing 
the  divine  teachings  of  the  Old.1  In  the  writings 
of  the  Jewish  Prophets  we  see  always  the  same 
conception — that  the  mouth  is  the  organ  of  the 
mind  and  heart  in  their  deepest  issues  of  Thought 
and  of  Intention.  The  solemn  promise — the  sacred 
vow — is  always  spoken  of  as  recorded  by  the  lips. 
Thus  amid  the  splendours  of  the  sixty-sixth  Psalm 
we  have  the  words — "  I  will  pay  Thee  my  vows 
which  my  lips  have  uttered,  and  my  mouth  hath 
spoken,  when  I  was  in  trouble."  And  so  also,  in 
respect  to  the  great  duties  of  Worship  and  Devotion 
the  "  fruit  of  the  lips  "  is  spoken  of  as  our  truest  and 
most  acceptable  oblation.  Such  are  the  real  foun- 
tains of  the  fine  old  proverb  in  the  Brehon  Laws 
which  ranks  the  breaking  down  of  personal  honour 
and  good  faith  in  the  keeping  of  engagements  as 
among  the  heaviest  calamities  of  mankind.  This 
is  its  true  connection ;  for  the  same  passage  goes 
on  to  represent  the  great  practical  duties  of  Charity 
and  of  Religion  as  the  best  guarantees  against  the 
three  enumerated  evils.  And  when  it  is  added  that 

i  Numerous  other  passages  in  the  "  Senchus  Mor "  are  to  the  same 
effect.     See  Ancient  Laws  of  Ireland,  vol.  i.  pp.  33-41,  etc. 


144  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

these  duties  "  confirm  all  in  their  good  contracts  and 
in  their  bad  contracts,"  we  recognise  the  influence 
and  authority  of  that  grand  Benediction  in  the 
Psalms  of  David,  which  is  pronounced  upon  him 
"  who  sweareth  to  his  own  hurt,  and  changeth  not."1 
The  Covenants,  however,  about  the  hire  of  land, 
of  which  we  have  thus  seen  the  first  example,  did 
not  need  the  exercise  of  any  heroic  virtue.  Men  did 
not  make  them  to  their  own  hurt,  but,  on  both  sides 
to  their  own  advantage.  The  silence  of  their  intro- 
duction, the  speed  of  their  advance,  and  the  univer- 
sality of  their  prevalence,  are  all  consistent,  and 
consistent  only  with  the  knowledge,  and  experience 
of  mutual  profit,  or  mutual  convenience.  And  as  in 
all  other  similar  cases  where  the  growth  of  indivi- 
dual interests  is  founded  011  rules  of  law  becoming- 

o 

more  and  more  definite  and  precise,  these  Covenants 
tended  directly  and  very  powerfully  to  the  growth  of 
national  prosperity  and  wealth.  The  feelings  and 
the  instincts  which  inspired  these  Covenants  are 
the  real  explanation  of  their  great  results.  Senti- 
ment underlies  all  conduct  and  all  opinion ;  and  the 
prevailing  sentiment  of  any  given  time  is  that  which 
directs  for  evil  or  for  good  the  working  of  its  prac- 
tices and  its  laws.  If  that  sentiment  be  natural— 
unperverted,  the  working  will  be  of  a  corresponding 
character.  If  it  be  corrupt,  or  even  if  it  be  only 
rude  and  barbarous,  its  working  will  inevitably  lead 
to  corruptions  far  deeper  than  its  own.  For  this  is 
the  nature  and  property  of  all  evil  in  man  and  in 

1  Psalm  xv.  4. 


THE  AGE  OF  COVENANTS.  145 

society — to  lead  further  and  further  from,  the  ascend- 
ing path,  by  the  downward  steps  of  Natural  Conse- 
quence. Thus  the  prevailing  sentiment  which  has 
been  common  in  many  early  conditions  of  society  that 
war  is  the  only  occupation  worthy  of  a  man,  and 
that  all  forms  of  industrial  labour  are  comparatively 
mean,  is  a  sentiment  which  has  always  been  damag- 
ing, and  very  often  has  been  absolutely  fatal.  Wars 
when  waged  for  a  noble  cause  have  an  ennobling  effect 
on  men.  The  mere  love  of  fighting  and  of  rapine 
has,  on  the  contrary,  an  effect  the  most  degrading. 
Nor  is  this  effect  redeemed  by  picturesque  stories 
and  martial  poetry,  whether  they  be  Norse  Sagas,  or 
Gaelic  songs.  We  have  seen  that  the  Celts  under 
Robert  Bruce  were  disciplined  like  other  civilised 
men  to  fight  in  the  very  van  of  great  battles  for 
great  national  objects.  But  the  prevailing  senti- 
ment of  society  in  Scotland  in  his  days,  and  in  the 
old  times  before  them,  was  what  may  be  called, 
shortly,  the  Spirit  of  Improvement.  As  one  Province 
after  another  was  cleared  of  an  enemy,  and  firmly 
added  to  the  Kingdom,  the  next  thing  thought  of 
was  always  to  settle  and  improve  it,  by  giving  it  to 
men  who  could  hold  it  in  security,  and  could  reclaim 
it  from  bog  or  forest  by  his  own  servants,  or  by 
letting  it  out  to  Husbandmen.  These  classes 
moved  and  were  moved  freely  from  one  Estate  to 
another  as  their  services  or  their  undertakings 
were  required.  The  sentiment  of  keeping  men  on 
the  soil  for  the  sole  purpose  of  fighting  for  a  bare 
living,  eked  out  by  raids  and  forays,  was  not  the 
VOL.  i.  K 


146  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

sentiment  of  the  Kingdom  or  of  the  people  in  those 
greatest  days  of  our  national  history.  Robert  the 
Bruce  did  indeed  enact,  in  a  Parliament  held  at 
Scone  in  1318,  that  all  men  should  be  armed 
according  to  their  rent  or  possessions — the  humblest 
being  bound  to  provide  himself  with  at  least  a  good 
Spear  or  a  good  Bow  and  one  sheaf  of  (24)  Arrows.1 
But  he  and  his  predecessors  were  equally  desirous 
that,  when  possible,  the  Sword  should  be  turned 
into  the  Ploughshare  and  the  Spear  into  the 
Pruning  Hook.  For  this  purpose  they  encouraged 
peaceful  industry,  and  the  movement  of  the  culti- 
vating classes  from  one  district  to  another,  as  the 
great  work  of  reclaiming  a  wild  country  might 
require,  under  the  operation  of  natural  motives 
and  of  free  Covenants. 

Accordingly  wTe  have  historical  evidence  that 
such  movements  of  the  rural  population  were  con- 
stant and  habitual,  and  that  they  began  far 
earlier  than  is  generally  supposed.  The  provisions 
of  the  Scone  Lease  in  1312  show  that  one  set 
of  Husbandmen  went  out  when  the  new  "  Tacks- 
man  "  came  in,  whilst  another  set  came  in  with 
him  when  he  entered,  and  were  required  to 
leave  with  him  when  he  left.  But  this  bit  of 
evidence  stands  halfway  in  point  of  time  between 
two  other  items  of  evidence  to  the  same  effect.  One 
of  these  comes  from  the  century  before  the  Scone 
Lease,  and  the  other  from  the  century  after- 
showing  that  we  have  in  the  Scone  Lease  an 

1  Act.  Parl.  vol.  i.  p.  473. 


THE  AGE  OF  COVENANTS.  U7 

example  of  the  regular  rule  and  practice  of  a  long 
and  a  great  Age.  More  than  a  hundred  years  be- 
fore that  Lease,  so  early  as  1209,  in  the  Reign  of 
William  the  Lion,  we  find  that  the  case  of  Husband- 
men leaving  their  holdings  at  the  covenanted 
expiration  of  an  express  term,  had  become  a  case 
so  common  that  it  needed  special  notice  and 
recognition  in  respect  to  the  heavy  dues  which 
were  then  raised  on  the  grinding  of  corn  for  the 
support  of  Mills.  Accordingly  it  was  provided  in  a 
short  Act  of  the  Great  Council  of  the  Kingdom, 
held  at  Scone  in  1209,  that  a  man  leaving  land 
which  he  had  held  on  Lease  for  a  given  term,  "  and 
passing  away,"  should  not  be  called  upon  to  pay 
more  than  a  certain  limited  rate  of  "  multure  "  on 
his  corn,  or  should  have  one  half  of  the  quantity 
required  for  seed  wholly  exempted.1  Another 
Statute  of  the  same  date  made  some  corresponding 
regulation  for  the  case  of  new  or  in-coming  Tenants. 
This  early  care  for  "  outgoing  Tenants,"  and  for  those 
who  came  in  their  place,  as  a  well-known  class,  is 
remarkable.  We  are  apt  to  fancy  that  in  those 
remote  times  agriculture  was  hardly  yet  a  profession 
or  a  pursuit — that  men  only  farmed  to  live,  and  that 
there  were  few  or  none  who  lived  to  farm.  But 
from  this  old  law  of  William  the  Lion,  and  from  the 
simple  and  natural  terms  in  which  it  speaks  of  a 
class  who  held  lands  "  on  farm,"  and  who  "passed 
away  "  from  them  at  the  end  of  their  term,  it  is 
clear  that  this  condition  of  things  had  then  already 

1  Act.  Parl.  vol.  i.  p.  382. 


148  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

become  common  at  the  beginning  of  the  Thirteenth 
Century,  and  that  all  the  Estates  of  the  Realm 
regarded  it  as  a  natural  and  necessary  incident  of 
the  progress  of  agriculture,  and  of  the  operation  of 
free  Covenants  between  those  who  owned,  and  those 
who  hired  land  for  the  purposes  of  cultivation. 
Such  movings  and  changings  among  Tenants  might 
arise  either  from  the  Tenant  thinking  he  could  do 
better  elsewhere,  or  from  the  Owner  finding  he  could 
do  better  in  improving  and  reclaiming  through 
other  men. 

We  have  only  to  look  at  the  Scone  Lease  to  see 
how  great  was  the  work  of  reclamation  in  those 
days,  and  how  little  it  could  be  intrusted  to  men 
who  mentally,  if  not  physically,  were  "  adstricti 
glebaB,"  tied  by  ignorance  to  the  idle  habits  and 
wasteful  usages  of  a  barbarous  age,  who  had 
absolutely  no  capital,  or  whose  industry  had  often 
been  destroyed  by  the  desolating  customs  of  Celtic 
Feudalism.  There  was  much  to  be  done  in  those 
days  in  subduing  the  earth,  and  it  was  the  first  care 
as  it  was  the  first  duty  of  the  Owners  of  land  to  see 
that  those  things  were  done.  How  much  was 
expected  from,  and  how  much  was  habitually  done 
by,  the  class  of  men  who  took  land  on  hire,  and  who 
reclaimed  it  for  their  own  profit,  as  much  as  to  the 
advantage  of  the  Owner  and  of  the  Nation,  may  be 
judged  by  the  scale  of  increasing  rent  which  was 
bargained  for  by  the  Monks  under  the  Scone  Lease. 
Within  the  comparatively  short  space  of  20  years, 
the  Tenants  in  this  case  became  bound  to  pay  ten 


THE  AGE  OF  COVENANTS.  149 

merks  instead  of  two  merks  for  the  same  amount 
of  land.  That  is  to  say,  that  the  calculated  increase 
of  value,  measured  by  rent  alone,  was  to  be  500 
per  cent.  Beyond  all  this,  of  course,  the  Lessees 
expected  to  make  not  only  a  profit,  but  probably 
an  increasing  share  of  profit  out  of  the  reclamations 
they  might  effect.  But  assuming  that  their  profit 
was  to  bear  to  the  end  of  the  Lease,  not  an  increas- 
ing proportion,  but  only  the  same  proportion  to 
total  produce  as  at  the  commencement,  we  see  that 
the  processes  of  improvement  were  then  known  to 
be  so  rapid  and  so  sure  in  their  results  that  Lessees 
could  calculate  upon  a  great  increase  of  produce  in 
twenty  years, — so  great  that  a  Farm  producing  corn 
and  cattle  to  the  value  of  6  merks,  at  the  beginning 
of  that  tune,  was  safe  to  produce  at  least  30  merks' 
worth  at  the  end  of  it.  I  assume,  as  a  rough  ap- 
proximation to  the  truth,  the  correctness  of  an  old 
saying  in  Scotland,  that  Rent  in  those  days  gener- 
ally represented  about  one-third  of  the  produce. 
This  saying  was  embodied  in  a  rhyme  which  has 
descended  with  its  old  Scotch  dialect  from  distant 
generations,— 

"  Ane  to  saw, 
Ane  to  maw, 
And  ane  to  pay  the  Laird  witha'." 

which,  translated  into  purer  Anglo-Saxon,  means 
"  One  part  to  sow  (for  seed),  one  part  to  eat  (con- 
sumption or  profit),  and  one  part  to  pay  the  Laird 
(Owner)  with  all"  (Rent). 

There  is  no  reason  to  believe  that  the  rate  of 


150  SCOTLAND  AS  IT  WAS  AXD  AS  IT  IS. 

increase  contemplated  under  the  Scone  Lease  was 
in  any  way  exceptional,  for  fertile  as  the  Valley  of 
the  Tay  now  is,  it  is  clear  that  at  that  time  it  had 
a  large  proportion  of  peat-mosses  and  other  wild 
land,  which,  under  the  system  of  Free  Covenants, 
already  long  in  operation  before  1312,  have  now 
entirely  disappeared. 

I  have  already  said  that  the  Scone  Lease  stands 
midway  in  point  of  time  between  two  items  of 
historical  evidence  as  to  the  habitual  movings  and 
changes  among  the  cultivating  class,  consequent 
on  the  taking  and  on  the  leaving  of  land  under 
covenants  of  Lease.  We  have  seen  how  distinct 
that  evidence  is  at  a  date  more  than  a  hundred 
years  before  the  Scone  Lease.  Let  us  pass  on  for 
another  hundred  years,  and  we  have  another  evidence 
still  more  emphatic  and  remarkable.  It  is,  indeed,  a 
most  significant  indication  of  the  fundamental  value 
attached  to  the  full  rights  of  Ownership  in  land,  and 
of  the  insuperable  objections  which  were  then  enter- 
tained against  any  division  of  those  rights  or  any 
limitation  of  them  except  such  as  might  flow  from 
perfect  freedom  of  contract  between  free  men.  This 
indication  is  afforded  by  an  entry  in  the  proceed- 
ings of  one  of  the  early  Parliaments  of  James  I.  held 
at  Perth  in  the  year  1429— an  entry  of  a  most 
anomalous  kind.  It  appears  that  the  system  of 
letting  land  on  lease  to  "Tacksmen"  had  become  so 
prevalent  that  attention  had  been  much  called  to  the 
consequent  sudden  removal  of  the  actual  cultivators 
or  Husbandmen  who  had  previously  occupied  the 


THE  AGE  OF  COVENANTS.  151 

lands  so  let.  James  I.  did  not  ask  his  Parliament 
to  remedy  this  inconvenience  by  giving  to  such 
cultivators  any  "  fixity  of  tenure  "  which  would  be 
obviously  incompatible  with  undivided  Ownership 
and  with  the  progress  of  agricultural  improvement. 
He  did  not  even  ask  therefore  for  any  positive 
statute  on  the  subject.  But  he  proposed  to,  and 
obtained  from,  the  Barons  and  Prelates  who  were 
the  great  Landowners  present  at  Perth,  a  promise  or 
engagement  that  for  the  future  they  would  give  one 
year's  notice  to  all  cultivators  or  Husbandmen  whose 
removal  might  be  involved  in  any  new  Leases  they 
might  grant.1  At  a  time  when  there  was  much  un- 
cultivated land,  and  no  difficulty  in  obtaining  the 
occupation  of  it,  this  promise  was  probably  quite 
effectual  to  prevent  any  serious  hardship  to  the 
cultivating  class. 

It  is  not,  however,  till  twenty  years  later  that 
we  find  the  earliest  legislative  landmark  in  the  his- 
tory of  Covenants  for  the  hire  of  land.  The  first  Act 
of  Parliament  on  the  subject  arose  out  of  the 
necessity  of  deciding  whether  the  Owner  of  land 
could  grant  Leases  which  should  be  binding  on  his 
successors  by  purchase,  or  on  other  "  singular  suc- 
cessors ; "  that  is,  successors  to  the  estate  not  being 
his  own  natural  heirs.  The  question  before  that  old 
Parliament  may  be  stated  thus : — each  new  Owner, 
in  buying  land,  bought  or  succeeded  to  all  the  full 
rights  of  Ownership.  Could  he  be  deprived  of  them 
by  the  act  of  those  who  had  preceded  him  ?  To 

1  Acts  of  the  Parliaments  of  Scotland,  vol.  ii.  p.  17. 


152  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

admit  that  he  could  was  in  one  sense  an  immense 
extension  of  the  powers  of  Ownership,  because  it 
extended  those  powers  even  beyond  the  grave,  and 
made  the  "dead  hand"  prevail  over  the  living.  Yet, 
in  another  sense,  and  for  the  very  same  reason,  it 
would  be  a  great  limitation  on  the  powers  of  Owner- 
ship in  the  hands  of  the  living,  because  it  made 
them  subject  to  promises  and  engagements  to  which 
the  living  Owner  had  never  been  a  party.  Whether 
was  the  dead  Owner  or  the  living  Owner  to  prevail  ? 
Were  all  existing  and  living  Owners  to  be  deprived 
of  their  freedom  over  their  own  estates  because  their 
predecessors  had.  chosen  to  limit  their  own  freedom 
during  their  own  lives  ?  This  was  one  aspect  of 
the  question,  and  it  was  the  aspect  in  which  the 
question  might  most  naturally  be  regarded  by  an 
Assembly  of  rough  Chiefs  and  Barons,  who  were 
themselves  also  the  greatest  Landowners  in  the 
Kingdom. 

But  there  was  another  aspect  of  the  question 
—namely,  this  :  What  was  just  to  those  who  had 
taken  Leases  from  one  Owner  and  found  themselves 
suddenly  in  the  hands  of  another  ?  Again  :  What 
was  the  best  principle  to  adopt  in  the  permanent 
interests  of  agriculture  and  of  all  the  classes  who 
had  interests  in  land  subordinate  to  the  interests 
of  Ownership  ?  These  were  the  questions  which 
had  to  be  decided  by  the  Parliament  of  Scot- 
land in  1449  ;  and  the  manner  in  which  they  were 
decided  is  an  excellent  answer  to  the  ignorant  clap- 
trap which  assumes  that  all  ancient  legislation, 


THE  AGE  OF  COVENANTS.  153 

having  been  enacted  by  the  classes  connected  with 
the  Ownership  of  land,  was  necessarily  guided  by  a 
purely  selfish  spirit.  It  would  be  more  true  and 
philosophical  to  admit  that,  on  the  whole,  in  every 
advancing  country,  each  generation  has  had  at  least 
as  much  conscience  and  as  much  sense  of  justice  as 
our  own.  So  it  was  certainly  in  the  Fifteenth 
Century  in  Scotland  ;  and,  although  in  that  case, 
as  in  all  other  similar  cases,  the  decision  which  was 
just  was  also,  in  the  long-run,  the  decision  most 
conducive  to  the  interests  of  those  who  might  have 
been  tempted  to  think  otherwise,  yet  the  reasons 
which  influenced  that  decision  were  reasons  of  con- 
science dictating  a  wise  and  reasonable  policy. 

It  is,  indeed,  remarkable  that  these  considera- 
tions, and  not  what  we  should  now  call  reasons  of 
Political  Economy,  are  especially  set  forth  in  this 
statute,  as  the  determining  considerations  in  the 
case.  The  wording  is  curious  : — 

"  It  is  ordained  for  the  safety  and  favour  of  the  poor  people 
that  labour  the  ground  that  they,  and  all  others,  that  have  taken 
or  shall  take  lands  in  time  to  come  from  Lords,  and  have  times 
and  years  thereof,  that  suppose  the  Lords  sell  or  alienate  these 
lands,  the  Takers  shall  remain  with  their  tacks  on  to  the  ische 
(expiry)  of  their  times,  into  whosesoever  hands  these  lands  come 
(pass),  for  such  like  male  (rent)  as  they  took  them  for  before."1 

This  is  indeed  sound,  wise,  and  civilised  legis- 
lation— directed  to  the  encouragement  of  deliberate 
contracts  by  insisting  on  their  binding  force  against 
the  party  which  was  then  the  strongest — and  on 

1  Act.  Parl.  (Jacob.  Prim.)  vol.  ii.  p.  35.  This  Act  is  quoted  in  law 
books  as  1449,  c.  17. 


154  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

their  binding  force,  too,  especially  in  the  case  of  a 
change  of  Ownership,  so  that  Leases  should  be  valid 
against  all  comers.  It  has  been  supposed  that  the 
words  "  poor  people  that  labour  the  ground"  indicate 
some  very  specially  low  condition  of  the  agricultural 
classes.  But  this  is  by  no  means  a  necessary  impli- 
cation. It  does,  indeed,  imply  that  Leases  were 
given  to  Tenants  who  were  poor.  But  the  protec- 
tion which  the  statute  gives  is  not  confined  to  this 
class,  but  is  expressly  extended  to  "  others  "•  —to  all 
who,  whether  poor  or  comparatively  rich,  should 
make  bargains  for  the  hire  of  land  for  definite  times 
and  for  fixed  rents.  The  historian  is  right  when  he 
describes  this  law  as  "  a  wise  and  memorable  act  in 
its  future  consequences  on  the  security  of  property, 
the  liberty  of  the  great  body  of  the  people,  and  the 
improvement  of  the  country."  l 

It  will  be  observed  that  this  legislation  not  only 
places  no  restriction  on  the  undivided  Ownership  of 
land,  but  that  it  implies  and  assumes  as  belonging 
to  that  property  the  most  complete  and  unrestricted 
rights.  It  was  simply  an  Act  to  facilitate  and  to 
enforce  contracts  or  engagements  which  had  been 
deliberately  made.  As  between  the  Owner  and  the 
Lessee  it  implies  that  the  Lessee  could  have  no 
other  rights  than  those  he  might  stipulate  for  in 
his  Lease.  He  could  enforce  these,  not  only  against 
the  natural  heirs  and  successors  of  the  Owner  with 
whom  he  had  made  the  covenant,  but  also  against 
aU  who  might  otherwise  acquire  the  same  estate, 

1  Tytler's  History  of  Scotland,  vol.  iv.  p.  66. 


THE  AGE  OF  COVENANTS.  155 

but  beyond  these  lie  had  none  to  enforce.  He  was 
in  no  way  protected  against  himself.  He  might 
agree  to  render  services  of  any  extent,  but  they 
must  be  sufficiently  definite  to  be  capable  of  legal 
enforcement.  On  the  other  hand,  neither  in  this 
way  nor  in  the  way  of  rent  in  money  or  in  produce 
could  the  Owner  add  anything  during  the  stipulated 
term.  But  again,  at  the  end  of  that  term  all  the 
Lessee's  rights  ceased,  because  this  was  part  of  the 
covenant.  Thus  both  parties  could  have  confidence 
—that  one  essential  element  in  all  the  transactions 
of  business.  Then,  further,  as  between  the  Lessee 
and  those  under  him  there  was  no  interference  of 
the  law.  The  Lessee  could  exercise  all  the  rights 
of  Ownership  which  his  Lease  conveyed  to  him, 
and  if  there  was  no  Lease  or  other  express  Cove- 
nant, the  law  presumed  him  to  have  the  yearly 
fruits  of  the  soil,  whether  natural  or  artificial,  and 
the  complete  power  of  exclusive  occupation  over 
the  whole  surface  for  the  purposes  of  husbandry.1 
If  his  Lease  allowed  him  to  sublet,  he  might  do 
so  under  whatever  conditions  he  could  obtain  from 
others.  If  his  Lease  did  not  allow  him  to  sublet, 
the  prohibition  would  be  enforced.  If  the  Lease 
was  given  to  a  group  of  the  "poor  people  that 
laboured  the  ground,"  the  same  rights  and  obliga- 
tions applied  to  them  that  applied  to  the  wealthier 
individual  "  Tacksman."  Such  men  who  held  land 
under  Lease  could  deal  with  all  others  of  their 
own  class  precisely  as  richer  Lessees  could  deal  with 

1  Erskine's  Institutes,  ed.  1838,  p.  330. 


156  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

them  under  the  same  conditions.  The  one  great 
characteristic  feature  of  this  system,  and  its  one 
immense  superiority  over  Celtic  and  all  other  mere 
local  customs,  was  in  the  substitution  of  certainty 
for  uncertainty,  of  Definiteness  for  Indefiniteness,  of 
known  and  settled  law  for  mere  vague  usages  and 
tradition. 

We  pass  on  for  another  short  space  of  only  20 
years,  and  we  come  upon  another  sample  of  that 
wise  and  progressive  legislation  which,  in  keeping 
to  fundamental  principles,  and  to  all  that  was  good  in 
ancient  usages,  yet  took  note  of  evils  as  they  arose, 
and  checked  anyaccidental  invasions  of  acknowledged 
obligation.  Somehow  it  had  come  to  pass  that  when 
Owners  of  land  got  into  debt,  their  creditors  came 
upon  their  lands  and  seized  all  the  cattle  and  crop 
they  could  find  upon  it,  without  distinguishing 
between  that  which  properly  belonged  to  the  Owner 
of  the  soil,  and  that  which  belonged  to  the  hirer  of 
it.  Probably  this  hardship  began  in  and  arose  out 
of  the  prevalence  of  "  Steelbow"  holdings,  in  which 
the  cattle  and  other  stock  were  supplied  by  the 
Owner  of  the  soil.  But  whatever  was  its  origin, 
it  had  become  a  grievance,  and  it  was  obviously 
destructive  of  the  principle  of  a  Lease,  which  secured 
the  Tenant  against  any  increase  of  his  "  male  "  or 
rent  before  the  expiry  of  his  term.  If  a  Tenant  had 
this  security  only  against  a  solvent  Owner,  but  lost 
it  as  against  creditors  the  moment  his  landlord 
became  insolvent,  it  is  obvious  he  would  practically 
have  no  security  at  all,  and  the  whole  value  of 


THE  AGE  OF  COVENANTS.  157 

Leases  would  have  been  destroyed.  Accordingly, 
in  strict  consistency  with  the  fundamental  principle 
of  ancient  and  well-established  covenants,  with 
recent  confirmatory  legislation,  and  with  the  clear 
equities  of  the  case,  the  Parliament  of  James  in.1 
which  was  held  at  Edinburgh  in  1469,  enacted,  that 
this  invasion  of  the  faith  of  Leases  should  be  put  an 
end  to — that  the  "  puir  tenants"  should  never  in 
any  case  be  liable  for  any  portion  of  their  Landlord's 
debts,  beyond  the  amount  of  their  stipulated  rent — 
so  that  "the  inhabitants  should  neither  be  grieved 
nor  hurt  by  their  Lord's  debts."  The  Roll  of  this 
Parliament  shows  that  only  four  Burgesses  attended, 
representing  Stirling,  Aberdeen,  Edinburgh,  and 
Dumfries.  All  the  rest  of  the  legislative  body 
belonged  to  the  Ecclesiastical  and  Baronial  Orders 
—who,  in  this  case,  as  usual,  were  the  leaders  of 
the  nation  in  the  progress  of  civilisation  and  of  law. 
There  is  but  one  other  important  step  to  be 
noticed  in  this  memorable  course  of  legislation. 
Eighty-five  years  later  than  the  Statute  we  have 
just  mentioned,  it  was  again  found  necessary  for 
Parliament  to  interfere  for  the  purpose  of  regulating 
the  forms  under  which  Owners  should  give  notice 
to  Tenants  whether  they  intended  to  renew  their 
Covenants  for  another  term  or  not.  Some  ancient 
traditional  customs  connected  with  this  point  are 
curious  and  obscure.  It  seems  that  in  remote  times, 
before  written  documents  were  in  use,  the  Owner  of 
land,  in  letting  it  to  a  "  Malar"  or  Tenant,  used  to 

1  Act.  Part.  (Jacob,  in.)  vol.  ii.  p.  9(5. 


158  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

present  him  with  a  wand.  And  so  also  when  he 
wished  his  "Malar"  or  Tenant  to  remove  at  the 
stipulated  end  of  his  term,  the  Owner  used  to  give 
him  legal  and  formal  notice  by  coming  to  his  Tenant's 
door,  and  breaking  another  wand  before  him.1  And 
this  could  be  done  at  any  time,  and  on  any  day  in 
the  last  year  of  the  Lease.  This  was  clearly  the 
survival  of  some  very  ancient  symbolism.  I  do  not 
know  its  origin,  and  very  probably  this  cannot  now 
be  traced.  But  it  points  beyond  question  to  the 
great  antiquity  of  the  sentiment  that  the  letting  of 
land  was  a  mere  lending  of  it  by  the  Owner,  and 
that  he  had  a  right  to  resume  his  property  by  a 
very  simple  and  peremptory  process.  In  very  rude 
and  early  times,  when  the  Stock  was  very  generally 
lent  by  the  Owner  along  with  the  land  itself,  and 
when  Tenants  had  little  or  nothing  to  remove, 
except  their  persons  and  a  few  simple  instru- 
ments of  husbandry,  the  want  of  any  fixed  period 
of  previous  notice  was  probably  not  felt  as  a  hard- 
ship, or  even  a  serious  inconvenience.  But  of  course 
as  agriculture  improved,  and  as  the  class  which 
lived  on  the  hire  of  land  became  a  little  wealthier, 
this  inconvenience  would  become  serious.  It  was 
to  remedy  this  that  a  new  Act  was  passed  by  the 
Parliament  of  Queen  Mary  which  sat  in  Edinburgh 
in  1555.  There  was  evidently  much  need  of  some 
processes  more  regular  than  those  then  in  use,  for 
we  know  by  a  previous  Act  passed  in  154G  that 
serious  troubles  and  even  bloodshed  had  arisen 

1  Erskine's  Institutes,  p.  35.3. 


THE  AGE  OF  COVENANTS.  159 

connected  with  the  removal  of  Tenants  at  the  end 
of  their  Leases.  The  Scottish  Parliament  did  not 
conceive  that  the  way  to  remedy  such  evils  was  to 
sanction  bad  faith,  or  to  legalise  the  breach  of  deli- 
berate covenants.  But  it  did  require  that  every 
step  should  be  taken  in  due  form  of  law — not  by 
sudden  violence  on  the  one  side  provoking  as  sudden 
resistance  on  the  other,  but  by  the  intervention  of 
the  King's  Officers  and  the  King's  Courts.  And 
now  for  further  and  more  permanent  remedy,  it 
provided  that  not  less  than  40  days'  notice  before 
Whitsunday  in  the  last  year  should  be  given  to 
every  Tenant  if  his  Owner  desired  him  to  remove  at 
the  originally  stipulated  date.  If  this  notice  was 
resisted,  the  case  was  to  be  taken  before  the  King's 
Courts,  by  whom  the  question  was  to  be  decided 
according  to  covenant  and  to  law.1  Such  has  been 
the  law  of  Scotland  until  the  other  day,  since  which 
a  larger  notice, — the  natural  agricultural  unit  of  one 
year,  has  been  required.  The  progress  of  agriculture 
has  made  this  extension  as  reasonable  as  was  the 
period  of  40  days  in  the  Sixteenth  Century.  But 
practically  that  Statute  of  Queen  Mary  may  be  said 
to  have  closed  the  era  of  Legislation.  Upon  that 
Legislation,  or  rather  upon  the  fundamental  prin- 
ciples of  equity  and  of  acknowledged  obligation 
which  underlay  it,  the  whole  subsequent  progress  of 
agricultural  industry  was  conducted.  It  well  ful- 
filled the  noble  purpose  and  declaration  which  was 
made  by  one  of  the  Parliaments  of  Robert  the  Bruce : 

1  Act.  Parl.  (Mar.  Reg.)  vol.  ii.  p.  494. 


160  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

"  The  King  wills  and  commands  that  common  law— 
that  right — be  done  to  Poor  and  Rich,  after  the  old 
laws  and  freedoms  before   these  times  rightiously 
oysset  and  hantit"  (known  and  understood).1 

We  have  not  yet  done,  however,  with  the 
important  historical  questions  on  which  light  is 
thrown  by  the  Scone  Lease.  A  common  impression 
prevails  in  many  minds,  that  although  lands  were 
let  on  hire  so  early  and  so  commonly  as  we  have 
seen,  yet  that  the  rents  paid  by  the  Tenants,  if  not 
mere  quit  rents,  were  at  least  very  low,  and  not  at 
all  regulated  by  anything  like  what  wre  now  under- 
stand by  Market  Value.  It  is  not  easy  to  explain 
how  this  impression  has  arisen.  In  two  ways  the 
evidence  seems  to  be  complete  against  it.  The  first 
kind  of  evidence  is  such  as  that  which  arises  out 
of  the  Scone  Lease — going  as  it  does  to  show  that 
rent  was  expected  to  follow  the  rising  value  of  the 
land,  and  that  Covenants  were  habitually  made 
under  which  the  Lessee  bound  himself  to  pay 
increasing  rents,  only,  however,  to  a  specified 
amount,  as  he  might  be  enabled  to  pay  them  out  of 
increasing  produce.  The  second  kind  of  evidence 
is  not  less  strong, — consisting  in  the  fact  that  there 
were  some  Tenants  to  whom  Lands,  Mills,  Houses, 
and  other  subjects  were  let  specially  and  expressly 
on  the  footing  that  they  should  hold  these  various 
possessions  at  a  low  or  preference  rent ;  and  in  the 
further  fact  that  this  was  a  well-known  kind  of 
Lease,  and  a  well-known  class  of  Tenant,  so  well 

1  Act.  Parl.  (Rob.  I.)  vol.  i.  p.  107. 


THE  AGE  OF  COVENANTS.  161 

known,  indeed,  that  they  were  designated  by  a 
name  separate  from  all  others.  This  name,  more- 
over, was  one  singularly  expressive  of  the  special 
origin  and  of  the  special  nature  of  the  tenure.  In 
the  language  of  those  centuries  they  were  "  kindly 
Tenants."  This  exactly  signifies  the  exceptional 
personal  feeling  which  led  Landowners  from  time 
to  time  to  grant  to  particular  persons,  and  as  a 
particular  favour,  farms  or  other  kinds  of  holding 
at  a  low,  or  sometimes  even  at  a  nominal  rent — 
just  as  they  might,  and  often  did,  actually  for 
similar  reasons,  grant  Annuities  out  of  rents  or 
Feus  at  a  small  and  fixed  rate  of  Feu-duty. 
Sometimes  we  know  that  these  "kindly"  feelings 
and  kindly  grants  were  given  in  gratitude  for  some 
special  service — sometimes  to  men  of  Knightly  rank, 
sometimes  to  Husbandmen,  and  "  Nativi "  of  the 
country.  But  the  same  healthy  usages  and  laws 
which  demanded  "  definiteness  "  in  all  other  tenures, 
made  the  same  demand,  and  all  the  more  carefully, 
in  the  case  of  this  exceptional  kind  of  Tenancy. 
They  were  grants,  or  they  were  covenants,  and 
nothing  more.  Like  all  other  grants  and  Covenants 
they  must  rest  on  evidence  of  the  intention  of  the 
Owner  or  the  Superior  from  whom  they  came. 
The  slovenly  argument  or  inference  that,  because 
an  Owner  may  not  have  asked  a  higher  rent  for  a 
long  time,  he  had  thereby  parted  with  his  right  to 
do  so,  and  had  sacrificed  a  power  incident  to  Owner- 
ship, was  an  argument  never  used,  and  an  idea 
never  entertained,  in  those  days.  But  on  the  other 
VOL.  i.  L 


162  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

hand,  in  the  high  spirit  of  legality  and  precision, 
which  is  the  only  secure  defence  of  the  rights  of 
men,  whether  they  be  rich  or  poor,  "  kindly " 
tenancies  were  rigidly  respected  wherever  there 
was  proper  evidence  of  the  preferential  right  in 
which  they  consisted. 

There  could  not  be  a  better  example  of  this 
than  a  case  given  in  the  Book  of  Lennox.  The 
Crawfords  of  Jordanhill,  near  Glasgow,  were  a 
distinguished  family  in  the  Sixteenth  Century. 
They  had  received  from  one  of  the  Earls  of  Lennox 
the  "  kindly  "  Tenancy  of  a  Mill  with  its  adjuncts 
in  the  village  of  Partick,  on  the  Clyde.  Later 
transactions  had  placed  in  the  hands  of  the  Com- 
mendator  of  the  Abbey  of  Paisley,  the  right  of 
Feuing  lands  in  the  same  Barony  of  Glasgow,  but 
under  the  restriction  that  he  was  to  respect  the 
rights  of  all  "kindly  Tenants."  In  1587,  Thomas 
Crawford  of  Jordanhill  seems  to  have  been  in  some 
danger  of  losing  his  Mill  in  Partick,  with  its  adjoining 
land.  James  vi.  and  the  Duke  of  Lennox  of  that 
date,  were  obliged  to  interfere,  and  in  the  Deed  or 
Warrant  to  which  I  refer,  they  record  the  reasons 
for  which  they  do  so.  These  were  twofold.  In  the 
first  place,  satisfactory  evidence  had  been  laid  before 
them  "  by  authentic  writ,"  and  otherwise,  that 
Thomas  Crawford  of  Jordanhill  "  was  kindly  tenant  of 
the  Mill,"  etc.,  and  that  he  had  been  in  peaceable 
possession  of  it  for  these  many  years  bygone  by 
virtue  of  heritable  right  and  feu  granted  to  him  "  by 
such  as  had  sufficient  power  for  the  time  to  set  (let) 


THE  AGE  OF  COVENANTS.  163 

the  same."  In  the  second  place,  the  King  and  Duke 
recount  "  the  good,  true,  honest,  faithful,  and  con- 
stant service  done  to  us  and  to  our  House  of  Lennox 
by  the  said  Thomas,  in  all  time  bygone  from  his 
youth."  Therefore,  the  Deed  declares  as  a  matter 
of  fact  that  upon  trial  or  examination,  the  said 
Thomas  had  been  found  "to  be  kindly  Tenant  of 
the  foresaid  Mill  and  pertinents,"  and  directs  that 
in  future  he  should  hold  it  "  in  Feuferme  "  to  his 
Heirs  and  Assigns  for  ever.1 

There  is,  however,  a  much  more  remarkable  case 
than  this  of  "  kindly  "  Tenancy — dating  from  a 
much  older  time,  and  surviving  to  the  present  day. 
Long  before  the  great  House  of  Bruce  had  become 
allied  with  the  old  Royal  Family  of  Scotland  they 
had  been  the  Lords  of  Annandale.  Not  many  miles 
from  the  point  where  the  river  Annan  falls  into  the 
Solway  Firth,  there  is  a  little  tract  of  country  marked 
by  a  curious  group  of  small  Lakes.  Within  the 
Parish  there  are  no  less  than  seven  of  these  sheets 
of  water.2  Of  these  the  largest  was  and  is  still 
called  Lochmaben.  Such  situations  were  naturally 
often  chosen  in  the  Military  Ages  for  Castles  of 
Defence.  So  it  was  in  this  case.  The  mounds 
and  moats  which  indicate  a  Castle  of  great  an- 
tiquity still  mark  the  spot  where  the  Lords  of 
Annandale  lived  before  they  had  risen  to  more 
than  Baronial  greatness.  Another  Castle  of  much 
more  magnificent  proportions  also  survives,  in  frag- 

1  Book  of  Lennox,  vol.  ii.  pp.  330,  331. 

2  Old  Stal.  Ace.  vol.  vii.  p.  234. 


164  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

merits  of  massive  wall,  upon  another  spot  nearly 
surrounded  by  the  waters  of  the  largest  Lake. 
Here  King  Robert  loved  to  hold  Court,  both  as 
King  and  as  Lord  of  Annandale,  on  his  Ancestral 
territory.1  Round  this  Castle,  and  by  the  side  of 
these  intertwining  Lakes,  there  were  four  of  the 
ancient  Farms  or  Townships  of  the  country,  which 
then  everywhere  represented  the  modes  of  cultiva- 
tion and  of  residence  common  among  the  native 
population.  For  some  special  reason  not  now  known, 
and  at  some  time  which  is  equally  uncertain— 
whether  before  or  after  the  Lords  of  Annandale  had 
become  Kings  of  Scotland,  one  or  more  of  them  had 
granted  to  the  Tenants  and  Husbandmen  of  these 
Farms  some  promise  or  engagement  that  they 
should  hold  their  land  on  the  footing  of  "  kindly 
Tenants."  These  "  Rentallers  "  were  called  "  the 
poor  Tenants  of  His  Majesty's  lands,"  and  "  kindly 
Tenants  :  "  their  duties  were  called  "  Rents  "  and 
their  possessions  "  Rooms."  There  was  no  written 
Deed  or  Charter ;  but  on  the  other  hand  there  was 
not  only  continuous  and  unbroken  local  tradition, 
but  there  was  an  equally  unbroken  chain  of  evidence 
in  the  continuous  transactions  of  many  generations. 
Succession  to  these  holdings  had  been  recognised 
always  by  the  simple  process  of  writing  the  name 
of  the  Successor  in  the  Rental  Book  of  the  Lord, 
which  entry  it  was  the  custom  for  the  Steward  of  the 
Estate  or  the  Constable  of  the  Castle  and  Lordship  to 
make  without  fee  or  charge.  These  little  holdings 

1   Old  Mat.  Ace.  vol.  vii.  p.  234. 


THE  AGE  OF  COVENANTS.  165 

were  bought  and  sold  as  freely  as  any  other  Estate 
in  land.  During  the  course  of  centuries,  in  rude 
times,  and  in  a  Border  District  when  and  where  it 
needed  sometimes  all  the  strength  of  strong  men  to 
keep  and  to  hold  their  own,  these  "  kindly  Tenants" 
lived  on — strong  only  in  the  memory  of  The  Bruce. 
There  were  some  attempts  to  oppress  them  oc- 
casionally by  the  Constables  of  the  Castle.1  But 
whenever  their  complaints  were  brought  to  the 
knowledge  of  the  higher  authorities  of  the  Kingdom 
they  were  always  remedied.  On  two  recorded 
occasions  there  were  direct  interferences  of  the 
Crown — once  in  the  time  of  James  vi. — once  again 
in  the  times  of  Charles  n.2  At  a  much  later  date 
— in  1726 — the  Courts  of  Law  were  called  upon 
carefully  to  consider  their  titles,  and  in  solemn 
decisions,  not  without  legal  difficulties,  these 
have  always  been  sustained.3  In  signal  rebuke  of 
the  loose  and  ignorant-  charge  against  the  Law, 
and  the  Administrators  of  the  Law  in  Scotland, 
as  if  they  had  wrongfully  construed  the  rights  of 
property  against  the  poor,  the  kindly  Tenants  of 
the  "  Four  Towns  "  of  Lochmaben  have  survived, 
and  still  survive  immense  changes  in  surrounding 
property,  for  the  simple  reason  that  the  evidence 
of  original  intention,  and  of  deliberate  covenant, 
although  not  resting  on  written  documents,  was 
nevertheless  of  such  a  nature  as  to  be  equally 
conclusive.  That  evidence  clearly  distinguished 

1  Lochmaben,  etc.     By  Rev.  W.  Graham,  pp.  100-1. 

2  Ibid.  p.  102.  3  Erskine's  Institutes,  p.  342. 


166  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

them  from  ordinary  agricultural  Tenants,  especially 
in  this,  that  their  rent  was  from  the  first  fixed  at 
a  rate  below  that  of  ordinary  value,  and  had  never 
been  on  the  footing  of  a  rent  variable  from  time  to 
time,  like  the  rent  of  ordinary  farms.  The  ultimate 
decision  of  the  Courts  of  Law  in  Scotland  recognised 
this  tenure  as  virtually  the  tenure  of  a  Feu — just 
as  James  vi.  and  the  Duke  of  Lennox,  on  another 
kind  of  evidence,  had  recognised  the  tenure  of  the 
Mill  at  Partick  by  Crawford  of  Jordanhill,  as  the 
tenure  of  a  Feu.1  In  virtue  of  this  decision  the 
kindly  Tenants  of  Lochmaben  became  Proprietors, 
and  have  ever  since  been  entered  as  such  in  the 
Valuation  Roll  of  the  county  in  which  these  lands 
are  situated. 

These  cases,  taken  from  very  different  centuries, 
and  applicable  to  very  different  classes  of  men,  show 
the  principle  on  which  alike  the  language,  and  the 
customs,  and  the  law  of  Scotland  recognised  the 
position  of  Tenants  who  held  lands  at  rents  which 
were  low  and  fixed,  as  fundamentally  distinct  from 
the  position  of  men  who  held  land  on  the  ordinary 
terms  of  hire.  Both  were  tenures  by  Covenant ; 
and  both  were  to  be  dealt  with  on  evidence  of 
intention.  But  the  nature  of  the  Covenant  in  the 
two  cases  was  wholly  different.  Where  the  cheap- 
ness of  rent  below  the  ordinary  value  was  guaranteed 
permanently  and  heritably,  the  holder  of  such  land 
was  virtually  a  Feuar,  and  it  was  best  to  recognise 
his  status  as  such.  In  both  the  instances  I  have 

1  Hunter,  On  Landlord  and  Truant,  4th  cd.  vol.  i.  p.  426. 


THE  AGE  OF  COVENANTS.  167 

given  this  was  done — in  the  case  of  the  man  who  was 
already  of  Proprietary  rank,  the  Laird  of  Jordanhill, 
and  in  the  case  of  the  poor  tenants  of  the  Four 
Towns  of  Lochmaben,  who  clearly  belonged  at  first 
to  the  class  of  Husbandmen,  or  perhaps  of  the 
soldiers  and  retainers  of  the  House  of  Annandale. 
In  other  cases  of  which  there  appear  to  have  been 
many  in  some  centuries,  where  the  grant  of  land  at 
a  low  or  abated  value  was  given  not  heritably  but 
personally  to  a  particular  man,  his  right  was  re- 
cognised as  that  of  a  Liferent,  and  at  his  death  the 
Owner  of  the  land  recovered  his  right  to  let  out  his 
farm  on  the  ordinary  terms  of  hire.  What  these 
ordinary  terms  were  in  principle,  and  in  the 
universal  understanding  and  practice,  is  clear  from 
the  mass  and  variety  of  transactions  in  the  nature 
of  Leases  which  already,  as  we  have  seen,  had  taken 
written  form  nearly  a  century  and  a  half  before  the 
death  of  King  Robert  the  Bruce.  As  regarded 
agricultural  lettings  it  is  clear  that  the  principle 
and  the  practice  was  that  rents  should  follow  real 
or  actual  value.  Values  were  rising  with  a  rising 
civilisation,  and  with  the  progress  of  improvements 
which  were  made  on  the  strength  of  undivided 
Ownership  and  on  the  faith  of  Covenants  founded 
thereupon.  On  the  other  hand,  these  improvements 
did  not  at  that  time,  when  scientific  agriculture 
was  unknown,  involve  the  heavy  expenditure  of 
modern  Buildings,  Drainage,  and  Fencing.  The 
only  draining  known  was  wide  open  Ditches — the 
"  Fossae  "  of  many  early  documents — to  cut  off  the 


168  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

cultivated  land  from  actual  bogs  and  morasses. 
The  only  fencing  was  made  of  rough  sticks  and 
branches  taken  from  the  nearest  brushwood — so 
light  and  flimsy  that  as  we  have  seen  the  Lords  of 
Avenel  used  to  break  and  trample  them  down  when 
out  with  Hounds  and  Hawks.  The  only  Houses 
were  the  traditionary  habitations  made  very  much  of 
the  same  materials — with  timber  frames,  wattled 
walls,  and  an  external  covering  of  mud  or  of  some 
kind  of  plaster.  Under  such  conditions  the  labour 
of  reclaiming  and  improving  land  must  have  con- 
sisted chiefly  in  digging  or  trenching,  and  in  taking 
out  the  roots  of  trees.  Very  often,  in  the  case  of 
the  poorer  class  of  Tenant,  the  oxen  for  ploughing, 
and  the  other  cattle,  were  supplied  by  the  Owner 
of  the  land.  Under  such  conditions  the  increasing 
produce  of  land  would  speedily  repay  the  labour 
spent  upon  it,  and  a  short  term  of  hire  at  a  rent 
proportioned  to  value  at  the  time  of  letting,  would 
be  an  ample  inducement  to  the  cultivating  classes 
to  seek  the  "  Tack."  This  explains  the  rule  laid 
down  by  the  Provincial  Council  of  the  Church  in 
1245  that  Tacks  should  not  be  granted,  and  con- 
sequently that  rents  should  not  be  fixed,  for  a 
longer  term  than  five  years.  This  also  explains  the 
rapid  scale  of  increase  in  the  rent  at  short  intervals, 
which  the  Tenants  agreed  to  pay  within  the  first 
twenty  years  in  the  long  Scone  Lease.  These 
Tenants  belonged  to  the  wealthier  class,  and  they 
would  certainly  calculate  upon  a  return  suitable  to 
their  condition. 


THE  AGE  OF  COVENANTS.  169 

It  may  be  assumed,  therefore,  upon  a  combination 
of  evidence  which  is  conclusive,  coming  as  it  does 
from  every  direction  of  the  compass,  that  the 
system  of  Leases  as  it  arose  in  Scotland,  was  a 
system  of  definite  Covenants  for  definite  terms  of 
years,  longer  or  shorter  as  special  circumstances 
might  determine  in  each  case,  during  which  the 
rent  was  either  absolutely  fixed  or  graduated 
according  to  a  fixed  scale  ;  but  at  the  end  of  which 
the  Owner  was  not  only  free,  but  was  ordinarily 
expected  to  make  a  new  Covenant,  on  new  con- 
ditions such  as  might  bring  the  rent  up  to  the 
usual  and  average  proportion  of  Kent  to  total, 
or  gross,  Produce.  This  does  not  mean  that  farms 
at  the  end  of  Leases  were  let  by  any  process  similar 
to  that  by  which  goods  are  sold  in  a  modern  auction 
room.  That  was  not  the  way  in  which  things  were 
done  in  those  days.  The  new  rent  may  some- 
times have  been  settled,  as  it  almost  certainly 
was  in  the  case  of  the  Scone  Lease,  by  the  Owner 
accepting  the  voluntary  offer  of  new  men  of  capital 
like  the  Hays.  But  generally  the  rent  must  have 
been  settled  not  by  the  highest  offer  of  any  actual 
or  formal  competition,  but  simply  and  naturally  by 
the  amount  which  any  dozens  or  scores  of  men 
would  be  eager  to  give  in  order  to  get,  or  to  renew 
the  Lease. 

This  is  market  value  in  its  natural  and  ordinary 
sense.  Between  this  kind  of  rent  and  a  "  fair  rent  " 
there  was  no  distinction.  In  a  manly  age  men 
thought  that  when  they  bought  anything,  or  hired 


170  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

anything  at  a  price  or  rent  such  as  almost  any  other 
man  would  give,  they  bought  or  hired  it  at  a  value 
which  was  fair.  It  is  remarkable,  moreover,  that 
when  at  a  much  later  time  the  loose  colloquial  ex 
pression  of  a  "  fair  rent  "  came  to  be  used  for  some 
practical  purpose  and  with  some  important  meaning, 
and  when  the  Law  was  obliged  to  give  to  it  some 
definite  interpretation,  that  interpretation  had  the 
effect  of  identifying  a  "  fair  rent  "  not  with  a  rent 
lower  than  the  average,  but,  on  the  contrary,  with  a 
rent  which  should  not  be  lower  than  that  average. 
This  interpretation  arose  out  of  the  practice  of 
Entails.  The  necessity  was  obvious.  When 
Owners  were  deprived  of  the  power  of  sale,  it  was 
absolutely  necessary  to  deprive  them  also  of  the 
power  of  alienating  under  collusive  forms.  If  a 
man  might  let  his  lands  at  any  scale  of  rent  he 
liked,  however  low  and  however  much  under  the 
average  or  market  value,  he  could  of  course  by 
accepting  large  fines  on  the  renewal  of  Leases  or  on 
the  first  lettings  of  land,  lower  the  rental  to  the 
point  of  practical  alienation.  To  prevent  such 
corrupt  practices,  and  still  to  preserve  the  essential 
principle  of  Leases  as  sanctioned  by  the  Act  of 
1449,  it  was  essential  to  provide  that  an  Entailed 
Proprietor  should  not  let  his  farms  below  a  "fail- 
rent."  And  again,  in  order  to  make  this  prohibition 
effectual,  it  was  absolutely  necessary  to  lay  down 
the  principle  that  by  a  "  fair  rent "  was  meant  a 
rent  fair  to  all  the  parties  concerned — to  the  existing 
Heir  in  possession — to  his  successors  in  the  Estate — • 


THE  AGE  OF  COVENANTS.  171 

to  the  Tenant,  and  to  the  interests  of  agriculture, 
which  are  never  really  promoted  by  the  removal  of 
those  incentives  to  exertion  which  arise  out  of  the 
necessity  of  meeting  obligations.  No  scale  of  rent 
could  suit  all  these  conditions  except  that  re- 
presenting the  value  which  men  of  average  capital, 
enterprise,  and  skill  would  be  certainly  willing  to 
give.  In  our  own  day,  wherever  "  the  public "  is 
concerned,  the  same  principle  is  adopted.  Lands 
are  always  valued  for  purposes  of  taxation  or 
assessment  on  the  basis  of  the  value  at  which  they 
would  let  one  year  with  another. 

A  moment's  consideration  will  show  that  under 
such  a  system  as  this  rents  might  remain  unchanged 
for  generations — even  for  centuries,  without  the 
slightest  inference  arising  against  these  rents  being 
purely  a  matter  of  Covenant,  or  the  least  presump- 
tion against  the  right  and  the  power  of  the  Owner 
to  let  his  lands  at  a  higher  value  if  he  could.  The 
value  of  everything  depends  upon  civilisation — not 
the  value  of  land  only,  but  the  value  of  all  its  pro- 
ducts, and  of  all  the  articles  manufactured  from  these, 
and  most  of  all,  the  value  of  human  labour.  But 
civilisation  does  not  advance  everywhere  and  at  all 
times.  It  may,  and  it  often  does,  stagnate,  and  for 
long  periods  of  time  it  may,  and  it  often  does,  go  back. 
The  population  of  particular  countries,  or  districts  of 
country,  may  be  given  up  to  less  improving  pursuits 
than  those  of  agriculture.  Its  produce  may  decline, 
and  a  recrudescence  of  barbarism  may  condemn  it 
to  chronic  poverty  and  waste.  Under  such  circum- 


172  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

stances,  of  course,  Rent  would  follow  the  conditions 
of  Society,  of  which — like  Price  in  every  other 
form,  and  especially  like  the  price  of  labour — it  is 
only  one  of  the  measures  and  results.  But  with 
the  return  of  peace,  and  the  recommencement  of 
peaceful  industries,  the  old  Covenants  would  be 
revived.  Land  would  regain  its  natural  value,  and 
the  same  proportion  of  its  total  produce  which  men 
are  always  ready  to  give  for  the  exclusive  possession 
of  it,  would  represent  a  higher  rent,  because  the 
total  produce  would  itself  be  a  much  larger  quan- 
tity, and  saleable  for  a  much  higher  price. 

But  the  universally  accepted  idea  over  the  whole 
of  Scotland  that  every  form  of  possession  in  land, 
whether  permanent  or  temporary,  rested,  and  could 
only  rest  upon  grant  from,  or  Covenants  with,  those 
"  who  had  sufficient  power  and  right  for  the  time  to 
grant  or  to  let  the  same,"  is  an  idea  which  receives 
another  illustration  from  another  tenure  in  Scotland 
which  is  even  more  striking  and  complete  than  the 
tenure  by  Lease.  I  refer  to  the  very  peculiar  but 
the  very  common  tenure  of  older  days,  which  was 
called  "  Wadset."  "  Wad  "  or  "  Wed  "  is  another 
form  of  the  word  "  Pledge,"  and  in  exact  accordance 
with  the  usual  meaning  of  that  word,  lands  let  upon 
"  Wad  "  were  lands  lent  on  Pawn.  The  Owner,  in 
consideration  of  a  certain  sum  of  money  paid  down 
to  him,  gave  in  pawn  or  in  pledge  to  the  Wadsetter 
certain  lands  or  farms,  under  the  counter-pledge  or 
Covenant  given  by  the  Wadsetter,  that  on  the  same 
sum  in  money,  or  some  other  sum  definitely  fixed, 


THE  AGE  OF  COVENANTS.  173 

being  repaid  to  him.  or  to  his  Heirs,  he  would  restore 
the  lands  to  the  former  Owner  or  his  Heirs. 

Under  this  strange  tenure  large  portions  of  great 
Estates  and  Baronies  were  often  pawned  to  Wad- 
setters.  Very  frequently  neither  the  Owner  nor  his 
Heirs  for  long  periods  of  time — it  might  be  for  genera- 
tions— found  it  convenient  to  redeem,  by  repayment 
of  the  stipulated  sum.  During  all  that  time  the 
Wadsetter  was  in  the  enjoyment  of  the  full  rights 
of  Ownership.  He  might  and  he  often  did  build 
valuable  houses  for  the  residence  of  a  Proprietary 
family — he  might  and  he  often  did  improve  the 
land,  and  let  it  out  at  increased  rents.  Yet 
whenever  the  original  Owner  or  his  Heirs  were 
enabled  to  fulfil  their  part  of  the  bargain  the  Wad- 
setter  was  bound  to  fulfil  his  part  of  the  bargain 
also — and  that  bargain  was  that  the  land  should 
return  to  the  Owner,  with  all  its  pertinents, 
according  to  the  terms  of  the  Covenant.  But  this, 
although  at  variance  with  popular  sentiments  of 
equity  in  the  present  day,  was  in  reality  perfectly 
just,  not  only  because  it  was  in  fulfilment  of  a 
deliberate  Covenant,  but  also  because  the  balance 
of  real  advantage  as  between  the  two  parties,  did 
not  by  any  means  always  lie  on  the  side  of  the 
Owner  who  redeemed  a  valuable  Wadset.  The 
value  of  the  land  originally  pledged  may  have  been, 
and  generally  was,  much  more  than  amounted  to 
fair  or  ordinary  interest  upon  the  sum  lent.  Be- 
sides this,  all  the  natural  or  accidental  increments  of 
rent  which  might  arise  with  the  progress  of  time, 


174  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

from  the  cessation  of  wars,  or  from  other  causes,  went 
into  the  pocket  of  the  Wadsetter,  so  that  by  the 
time  of  redemption  he  might  well  have  been  repaid 
not  only  the  whole  of  loan,  but  very  high  or  even 
usurious  interest  besides.  The  balance  of  advantage 
may  therefore  have  been  very  largely  on  the  side  of 
the  Wadsetter,  because  of  his  long  enjoyment  of  an 
enormous  return  for  some  small  loan  borrowed  by 
the  Owner,  under  the  pressure,  perhaps,  of  some 
great  and  unforeseen  necessity.  It  was  perfectly 
equitable  that  when  that  necessity  had  passed  away 
the  "  Reverser,"  as  he  was  called,  should  re-enter 
upon  his  property,  and  even  its  increased  value 
might  very  well  be  but  a  small  part  of  the  immense 
price  he  had  really  paid  for  a  temporary  accommo- 
dation. 

In  repeated  cases  large  Estates,  which  had  been 
broken  up  into  Wadsets  by  an  extravagant  or  un- 
fortunate Owner,  have  been  re-united  by  some  one 
or  more  successors  who  were  frugal  in  their  manage- 
ment, or  happy  in  their  alliances  and  acquisitions. 
The  Wadsetters  often  tried  to  avoid  or  evade  ac- 
cepting the  redemption  money.  But  both  the  law 
and  the  public  sentiment  held  firmly  and  unshakenly 
to  the  doctrine  that  Covenants  deliberately  made 
between  free  men  must  be  upheld.  The  Legislature 
interposed  in  1469  to  prevent  fraudulent  evasions 
of  them.  The  Courts  from  time  to  time  were  busy 
in  the  same  work,  and  in  regulating  the  rules  of 
warnings  of  redemption,  so  as  to  make  all  such 
Covenants  as  clear  and  express  as  possible,  and  to 


THE  AGE  OF  COVENANTS.  175 

make  it  easy  for  both  parties  to  protect  themselves 
against  usurious  interest  on  the  one  hand,  and 
sudden  redemptions  on  the  other.  But  these 
objects  have  always  been  aimed  at  on  the  principle 
of  reconciling  as  far  as  possible  unforeseen  and 
equitable  claims  with  substantial  observance  of  the 
faith  of  Covenants.  The  tenure  of  land  by  Wadset 
is  now  extinct,  but  it  has  become  extinct  mainly 
from  this  cause,  that  whilst  some  Wadsets  were 
converted  into  Feus,  or  bought  up  by  the  Wadsetters, 
a  very  large  number  were  extinguished  by  the 
literal  fulfilment  of  the  original  obligation,  by  the 
redemption-money  being  paid,  and  by  the  wad- 
setted  land  being  merged  in  the  Estate  to  which  it 
had  originally  belonged.1 

We  have  seen  in  reviewing  the  Age  of  Charters 
how  early  they  had  begun — and  how  universally 
they  had  become  established.  We  have  seen  how 
they  forced  their  own  way  by  the  inherent  excellence 
of  the  principle  on  which  they  were  founded — giving 
form  and  substance  to  the  long  accepted  ideas  of 
men  in  respect  to  the  actual  sources  of  authority 
and  of  power,  whilst  at  the  same  time  they  tended 
to  check  the  excesses  of  that  power,  and  to  restrain 
within  the  limits  of  definite  law  and  obligation  the 
arbitrary  exactions  of  unwritten  Feudalism.  We 
have  seen  how,  even  in  Ireland,  the  Celtic  Provincial 
Kings  had  yielded  to  their  civilising  influence  before 
a  single  Norman  soldier  had  as  yet  landed  to  invade 
the  Isle  of  Saints.  We  have  seen  how  in  Scotland 

1  Erskine's  Institutes,  ed.  1838,  pp.  388-403. 


176  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

even  the  fierce  Lords  of  the  Isles — the  Sons  of  the 
wild  Somerled  of  Celtic  blood  and  of  Norse  inherit- 
ance— had  persuaded  the  lawless  Chieftains  of  the 
Western  Highlands  to  accept  and  to  impose  the  same 
restrictions  on  their  desolating  usages.  So  now  we 
have  to  observe  that  precisely  the  same  progress  was 
made  with  all  the  corresponding  tenures  which  were 
subordinate  to  Charters,  and  which  rested  on  the 
same  great  principle  of  defining  the  rights  of  men, 
and  of  accustoming  them  to  regulate  their  dealings 
with  each  other  on  the  faith  of  Covenants. 
Accordingly,  these  subordinate  tenures  in  the  form 
of  Leases,  Wadsets,  Grants,  Warrants,  and  Agree- 
ments of  every  form  and  kind  spread  rapidly  over 
the  whole  Kingdom,  from  the  Pentland  Firth  to  the 
Solway,  and  from  the  Western  Isles  to  the  German 
Ocean.  There  was  no  difference  between  different 
parts  of  Scotland  in  respect  to  the  law,  or  in  respect 
to  the  practices  founded  upon  it,  wherever  law 
and  order  was  maintained  at  all.  Leases  and  Wad- 
sets — which  last  tested  to  the  very  utmost  the 
principle  of  Covenant, — became  as  common  in  the 
heart  of  the  Highlands  as  they  were  in  the  Lowlands 
proper,  or  in  the  Southern  and  Border  Highlands. 
In  these  Border  districts  the  conditions  of  Society 
were  long  quite  as  unsettled  as  in  the  Western 
Mountains  or  on  the  Western  Coasts.  But  at  all 
times  and  in  all  places,  whenever  and  wherever 
peace  prevailed,  the  law  of  Charters  and  the  law 
of  Covenants  was  the  law  on  which  men  acted 
and  on  which  men  relied — on  the  strength  of  which 


THE  AGE  OF  COVENANTS.  177 

every  step  was  taken  in  the  path  of  improvement, 
and  in  the  work  of  civilisation.  If  in  any  part 
of  Scotland  this  system  of  law  was  ever  supplanted 
by  a  relapse  into  the  old  usages  of  Celtic  Feudalism, 
it  was  only  in  the  places  where,  and  in  the  times 
when,  all  law  was  suspended,  and  all  improvement 
stopped,  and  all  civilisation  turned  back  on  the 
way  to  Barbarism.  This,  however,  is  a  subject 
too  interesting  and  too  important  to  be  treated 
incidentally.  It  must  form  the  subject  of  another 
chapter. 


VOL.  i.  M 


CHAPTER  IV. 

THE    EPOCH    OF    THE    CLANS. 

WHEN  a  great  man  dies,  even  after  doing  imperish- 
able work,  it  may  sometimes  be  that  his  work  suffers 
skaith,  and  that  the  full  value  of  it  may  not  be  seen 
until  after  many  days.  It  was  so  with  King  Robert 
the  Bruce.  His  work  was  one  of  the  greatest  which 
it  is  given  to  men  to  do.  He  did  not  merely  win  a 
Crown — that  may  be  a  very  small  matter.  He 
made  a  Nation — and  that  must  always  be  a  very 
great  one.  He  gave  to  a  weak,  and  a  scattered, 
and  a  divided  people  one  common  object  of  ambition, 
and  that  a  noble  object,  He  welded  and  disciplined 
diverse  and  antagonistic  races  into  one  people — 
seeking  to  establish  that  national  independence  on 
which  alone  can  be  raised  the  structure  of  liberty 
and  of  law.  He  left  a  profound  impression  on  the 
mind  of  his  people.  It  is  one  of  the  great  merits  of 
the  curious  history  of  the  life  of  Bruce,  which  has 
been  left  to  us  by  a  Monk  of  the  same  century,  that 
its  laborious  rhymes  are  more  true  to  fact  than  to 
the  poetic  spirit.  There  are,  however,  some  passages 
of  true  poetry,  and  there  is  one  passage  in  particular 
of  singular  beauty,  force,  and  pathos.  It  is  the 


THE  EPOCH  OF  THE  CLANS.  179 

passage  in  which  the  Chronicler  relates  the  last 
scene  of  all — when  in  his  castle  of  Cardross,  looking 
down  on  the  junction  of  the  Leven  and  the  Clyde, 
the  old  Lion  had  lain  down  to  die.  When  the  sense 
of  death  had  smitten  him,  when  he  had  called  his 
Knights  around  him  and  told  them  of  his  long 
cherished  purpose — the  purpose  of  all  knightly  piety 
in  that  age — to  fight  against  the  Infidel, — when  he 
had  begged  that  some  one  might  be  chosen  who 
could  at  least  carry  his  heart  to  the  war  where  it 
had  long  wished  to  be, — when  the  good  Lord  James 
Douglas  had  accepted  this  mission,  when  the  dying 
King  had  given  his  last  instructions — when  the 
Church  had  shrived  him — with  "  very  repentance  " 
Robert  the  Bruce  gave  up  the  ghost.  Then  the 
Historian,  after  the  manner  of  Livy  and  other 
ancient  authors,  puts  into  the  mouth  of  those 
who  surrounded  the  deathbed  of  this  great  man, 
a  Song  of  Lament  which  well  expresses  the  sense 
of  loss  which  must  ever  accompany  the  departure 
of  a  powerful  Personality  from  the  world  :— 

"  All  our  Defence,"  they  said,  "  alas ! 
And  he  that  all  our  comfort  was, 
Our  wit  and  all  our  governing, 
Alas  !  is  here  brought  till  ending  ! 
His  worship,  and  his  mickle  might, 
Made  all  that  were  with  him  so  wycht, 
That  they  might  never  abased  be, 
While  forouth l  them  they  might  him  see. 
Alas  !  what  shall  we  do  or  say  1 
For  on  life  while  he  lasted,  ay 
1  Before — in  times  past. 


180  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

With  all  our  neighbours  dred1  were  we  : 
And  in  till  many  ser2  contrie 
Of  our  Worship  sprang  the  renown  : 
And  that  was  all  for  his  persoune."  ;i 

These  touching  words  were  not  more  touching 
than  profoundly  true.  The  personal  qualities  of 
great  men  are  in  all  ages  powerful.  In  rude  ages, 
when  the  foundations  of  society  are  being  laid, 
they  are  the  root  and  spring  of  everything.  But 
hero-worship,  the  disposition  to  follow  and  be  led  by 
any  one  with  strength  of  hand,  like  everything  else 
that  is  good,  may  have  its  dangers  too.  If  the  men 
whom  others  follow  be  men  like  Bruce,  with  some 
fruitful  principle  of  conduct  and  some  really  great 
objects  of  pursuit,  fidelity  to  their  standard  may 
well  be  the  very  highest  form  of  public  virtue.  But 
if,  on  the  contrary,  the  men  whom  others  follow  are 
the  reverse  of  all  this — if  they  embody  nothing  but 
the  lower  instincts  of  mankind,  and  have  no  objects 
of  pursuit  higher  than  intertribal  feuds  or  the  lust 
of  power  or  gain,  then  fidelity  to  Chiefs  and  Leaders 
may  be,  and  often  is,  the  very  greatest  danger  to 
which  Society  can  be  exposed.  It  has  broken  up 
great  Empires,  and  has  thrown  back  into  utter 
barbarism  national  governments  which  had  been  full 
of  promise. 

No  man  knew  this  better  than  llobert  Bruce, 
nor  did  any  man  know  so  well  from  what  part 
of  his  Kingdom  this  great  danger  would  be 

1  Dreaded — feared.  -  Foreign. 

3  Harbour's  Bruce,  bk.  xiv.  lines  853-867. 


THE  EPOCH  OF  THE  CLANS.  181 

likely  to  arise.  If  the  thoughts  of  his  deathbed 
were  fixed  upon  the  fields  of  Palestine,  the  anxieties 
and  the  cares  of  his  last  days  of  health  had  been 
wisely  directed  to  duties  which  lay  nearer  home. 
We  have  seen  that  many  of  his  Celtic  subjects  had 
followed  him  with  unswerving  fidelity,  even  when 
his  fortunes  had  been  at  the  lowest.  He  had  not 
only  trusted  them,  and  disciplined  them  along  with 
men  of  other  races,  but  he  had  placed  upon  them 
special  reliance  as  his  own  Battalions  of  reserve  in 
the  pitched  battles  of  Bannockburn  and  Byland. 
But  he  knew  also  that  whilst  under  good  Leadership 
they  were  brave  and  faithful,  they  might  as  easily 
be  equally  brave  and  equally  faithful  to  other  Chiefs, 
whose  first  care  was  not  for  the  Scottish  Kingdom. 
Accordingly,  in  the  Treaty  which  he  negotiated  with 
Edward  in.  in  the  last  year  of  his  life,  1328,  and 
which  was  ratified  by  the  English  Parliament  of 
Northampton  in  that  year,  he  took  care  to  extract 
from  that  Sovereign  an  Article  pledging  him  not  to 
intrigue  with  or  support  the  Celtic  subjects  of  the 
Scottish  Crown  in  the  Western  Isles.  For  himself, 
he  gave  a  corresponding  pledge  that  he  would 
abstain  from  similar  methods  of  attack  through  the 
rebellious  Celts  of  Ireland.1  It  is  impossible  to 
mistake  the  significance  of  this  provision.  Robert 
Bruce  knew  that  when  handled  and  led  by  true 
patriots,  the  Celtic  element  in  the  population  of  his 
Kingdom  would  be  an  element  of  strength ;  but  he 
knew  also  and  perhaps  foresaw  that  when  led  by 

1  Tytler,  vol.  i.  p.  352. 


182  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

anarchical  or  traitorous  Chiefs,  they  would  be  a 
source  of  weakness  and  of  danger.  How  near  and 
how  great  that  danger  was  it  was  not  possible  for 
even  Bruce  to  see.  Let  us  look  for  a  moment  at 
how  it  arose  and  what  it  teaches. 

In  the  long  and  happy  processes  of  amalgamation 
between  the  Celtic  and  Teutonic  races,  which  went 
on  in  Scotland  during  the  200  years  between  the 
reign  of  Malcolm  Canmore  and  the  reign  of  Robert 
the  Bruce,  there  never  was  any  recognition  of  such 
a  thing  as  the  Irish  "  Pale."  There  never  was  a 
circle  of  favoured  Provinces  within  which  the  people 
enjoyed  the  advantages  of  civilised  and  written 
laws,  and  outside  of  which  a  whole  Nation  was  left 
to  Archaic  usages  in  the  last  stages  of  decay, 
corruption,  and  abuse.  Wherever  the  authority  of 
the  Crown  extended,  there  was  one  system  of  law 
regulating  the  rights  and  obligations  of  men.  At 
one  early  period,  some  special  provisions  were  made 
for  respecting  and  protecting  certain  local  usages 
much  valued  by  the  Celts  of  Galloway — just  as 
under  the  Norman  Sovereigns  of  England  respect 
was  paid  to  such  local  customs  as  Gavelkind  in 
Kent.  But  never  in  any  part  of  Scotland,  once  it 
had  been  brought  under  the  National  Monarchy, 
were  Knights  and  Barons  encouraged  or  allowed  to 
hold  property  and  to  exercise  powers  under  the  old 
desolating  practices  of  Celtic  Feudalism.  The 
remotest  Earldoms  and  Baronies  of  the  Highlands 
had  been  brought  under  the  law  of  definite  and 
Chartered  rights,  and  the  most  powerful  of  the 


THE  EPOCH  OF  THE  CLANS. 

Chiefs  had  found  it  for  their  own  interest  to  impose 
the  same  limitations  and  obligations  upon  their 
subordinate  Vassals  and  Tenants.  Somerled  himself, 
the  great  Celtic  Lord  of  the  Isles,  who  was  killed 
when  invading  the  Lowlands  of  Strathclyde  in  the 
middle  of  the  Twelfth  Century  (1164),  had  adopted 
and  enforced  the  system  of  written  Charters.  So  far 
therefore,  as  acknowledged  Law  and  the  duties  of 
loyalty  were  concerned,  these  had  been  universally 
established  long  before  the  reign  of  Bruce.  Indeed, 
this  had  been  well  settled  eleven  years  before  he 
was  born  (July  12,  1274).1  The  Celtic  Chiefs  and 
people  of  the  Hebrides  had  been  allowed  their 
choice — to  emigrate  with  their  property,  or,  remain- 
ing, to  be  governed  in  future  by  Scottish  laws.2 
They  do  not  seem  to  have  had  any  reluctance  in 
transferring  their  allegiance  from  the  Sons  of  Haco 
to  the  descendants  of  Malcolm  Canmore.  By  a 
treaty  with  Norway  in  1266, 3  Alexander  in.,  Bruce's 
predecessor  in  the  Throne,  had  secured  to  the  Crown 
of  Scotland  the  Sovereignty  of  the  Isles,  and  from  that 
date  forward  there  never  was  any  doubt  or  question 
of  the  rightful  or  legal  supremacy  of  the  common 
Law  and  Statutes  of  the  Realm  over  the  whole  of 
the  western  Highlands  and  the  Western  Isles.4 

But  although  there  was  no  "Pale"  in  Scotland 
beyond  which  the  common  laws  and  statutes  of  the 
Realm  were  out  of  place,  there  was  a  very  large  part 

1  Lochmaben,  Five  Hundred  Years  Ago.     By  Rev.  William  Graham. 
1865.  *  Tytler,  vol.  i.  p.  40. 

3  Gregory,  Hist.  p.  23.  4  Skene,  Ctlt.  Scot.  vol.  i.  p.  495. 


184  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

of  that  Realm  within  which  those  laws  could  with 
difficulty  be  enforced.  Not  only  remoteness  and 
inaccessibility  of  geographical  position,  but  the  em- 
bodiment and  predominance  of  Celtic  Feudalism  in 
the  organisation  of  the  Clans,  placed  in  the  hands 
of  innumerable  Chiefs  a  social  and  political  power 
which  was  practically  absolute.  Removed  from  the 
centres  of  national  life  and  interest,  caring  nothing 
for  them,  and  engrossed  with  their  own  local  ambi- 
tions and  petty  feuds,  the  Chiefs  and  population  of 
all  the  Islands,  and  of  a  great  part  of  the  adjacent 
mainland,  were  a,  perpetual  thorn,  and  at  times  a 
source  of  real  danger,  in  the  side  of  the  Scottish 
monarchy  and  nation.  They  exhibited  in  curious 
perfection  the  operation  of  a  tendency  in  human 
society,  analogous  to  the  tendency  which  Darwin 
detects  in  animal  structures, — to  revert  to  an  older 
type.  I  do  not  believe  in  the  Savage  origin  of  Man. 
But  it  is  historically  certain,  that  all  races  of  which 
we  know  anything  have  passed  through  stages  of 
comparative  barbarism.  There  is  an  innate  tendency 
under  certain  conditions  to  go  back  to  these.  We 
feel  it  even  as  individuals.  In  the  midst  of  our  own 
highly  developed  civilisation  we  are  conscious,  in 
sentiment  at  least,  of  the  charm  of  stories  depicting 
a  "  wild  life."  In  a  few  cases,  and  among  the  poorer 
classes,  this  tendency  breaks  through  the  bounds  of 
sentiment,  and  passes  into  the  realities  of  action. 
Darwin  has  told  us  how  he  was  struck  by  the  condi- 
tion of  the  poorest  savages  in  the  world,  the  natives 
of  Tierra  del  Fuego,  when  he  saw  a  canoe  full  of  them 


THE  EPOCH  OF  THE  CLANS.  185 

alongside  his  ship,  and  among  them  a  woman  who, 
naked  herself,  was  suckling  an  equally  naked  child, 
whilst  the  snow  and  sleet  of  that  pitiless  climate  were 
beating  against  her  breast.  Yet  scenes  hardly  less 
piteous  may  often  be  seen  among  ourselves.  There 
are  men,  women,  and  children — whole  families,  who 
in  Scotland  and  England  betake  themselves  to  a  life 
in  the  open  air.  Often  with  scanty  clothing,  and 
nothing  to  shelter  them  but  a  ragged  tent,  they 
brave  the  wettest  seasons  and  the  severest  winters. 
I  have  seen  a  poor  woman  nursing  a  child  under 
conditions  of  exposure  hardly  less  apparently  miser 
able  than  the  mother  whom  Darwin  saw  in  the 
Straits  of  Magellan.  Yet  the  love  of  a  wild,  and 
almost  savage  life,  is  so  strong  on  these  wayside 
dwellers  that  it  is  almost  impossible  to  reclaim  them. 
I  have  known  of  houses  being  given  to  them,  and 
opportunities  of  work  ;  but  the  old  instinct  returns, 
and  the  old  life  is  resumed.  The  same  tendency, 
and  a  like  result,  takes  place  on  a  large  scale  when 
whole  tribes  of  men  enter  upon  a  backward  course. 
More  gradually,  and  with  no  violent  contrasts  to 
make  the  changes  visible  or  striking  in  any  high 
degree,  communities  and  nations  may  deviate  from 
the  path  of  civilisation,  and  wander  back,  without 
a  single  regret  or  sense  of  loss,  to  the  ways  of  bar- 
barism. 

But  the  wild  life  of  nations,  and  a  relapse  into 
its  habits  and  pursuits,  is  a  very  different  and  a 
much  more  serious  affair  than  in  the  case  of  indi- 
viduals. The  love  of  war  is  one  of  the  most  univer- 


186  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

sal  of  these  pursuits,  and  it  has  often  been  the  most 
destructive.  There  is  good  reason  to  believe  that 
to  this  cause  alone  was  due  the  ruin  of  a  civilisa- 
tion in  the  New  World  which  had  made  great  pro- 
gress, and  the  re-subjection  of  a  great  part  of  that 
Continent  under  the  foot  of  the  hunter  and  the 
savage.  It  is  well  worthy  of  observation,  also,  that 
there  are  some  races  more  prone  than  others  to  such 
relapse,  and  this,  too,  from  elements  in  the  character 
which  are  in  themselves  eminently  attractive.  A 
quick  and  imaginative  temperament,  with  strong 
passions  and  deep  emotions,  is  precisely  that  which 
is  most  open  to  the  love  of  adventure,  most  easily 
swayed  by  ambition,  most  readily  incited  by  hatred 
or  by  revenge.  Delight  in  songs  and  legends  of  the 
past,  in  which  strength  and  courage,  or  both  com- 
bined with  cunning,  are  the  great  objects  of  worship, 
tend  to  keep  alive,  and  to  transfuse  with  intense 
reality,  the  feuds  and  animosities  of  the  dead  into 
the  memory  and  hearts  of  the  living.  A  people 
with  such  gifts,  and  with  these  gifts  so  unregulated 
and  so  perverted,  may  not  only  be  in  danger  them- 
selves of  a  relapse  into  barbarism,  but  may  even 
have  power  to  drag  down  men  of  other  races  who 
come  within  the  circle  of  their  influence.  Just  as 
in  many  individual  men  and  women  there  are  inde- 
finable sources  of  attraction,  which  consist  in  Charm 
—sources  of  attraction  which  give  them  a  power  over 
others  far  beyond  any  reasonable  measure,  so  it  is 
with  some  races.  Perhaps  more  than  any  other 
race  of  whom  we  have  any  knowledge,  the  Celts 


THE  EPOCH  OF  THE  CLANS.          187 

have  had  this  power  of  Charm.  Their  customs  and 
usages,  their  poetry  and  their  legends,  their  courteous 
manners,  and  their  wild  life,  have  always  attracted 
the  men  of  other  races  who  have  been  brought  into 
contact  with  them.  Under  the  power  of  this  temp- 
tation, Saxons  and  Normans  have  revelled  in  Celtic 
customs,  have  put  into  them  a  coarser  spirit,  have 
ridden  them  to  the  death,  until  they  have  come  to 
represent  nothing  of  liberty  except  licence,  and 
nothing  of  law  except  licentious  usages.  The 
dwindled  and  degenerated  representative  of  the 
great  virtue  of  patriotism  has  shrunk  into  nothing 
better  than  passionate  fidelity  to  some  little  group 
of  men,  not  necessarily  even  of  the  same  blood,  but 
followers  merely  of  the  same  adopted  name  and 
standard. 

We  have  seen  in  a  former  chapter  how  Norman 
and  Anglo-Saxon  settlers  in  Ireland  became  the 
worst  oppressors  of  the  Irish,  by  descending  below 
the  level  of  their  own  native  Chiefs,  and  conform- 
ing their  habits  and  their  conduct  to  the  most 
corrupt  of  native  usages.  A  process  somewhat 
similar  passed  over  the  Chiefs  and  Barons  of  the 
Hebridean  Isles  and  Coasts,  many  of  whom  were 
of  Norman  or  of  Norse  descent,  and  almost  all 
of  whom  were  of  more  or  less  mixed  blood.  The 
marriage  between  Norse  and  Celtic  usages  could 
not  fail  to  increase  both  the  charm,  the  tempta- 
tions, and  the  inherent  vice  of  the  wild  life  of  both 
races.  There  are  some  outward  forms  and  exhibi- 
tions of  war,  which,  by  their  strength  and  poetry, 


188  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

tend  naturally  to  inflame  men's  passion  for  it.  The 
pomp  and  circumstance  of  great  armies  did  not  con- 
stitute the  incitement  of  the  Islanders.  But  the 
beauty  and  the  winged  swiftness  of  great  fleets  of 
Galleys,  each  of  them  "  walking  the  waters  like  a 
thing  of  life,"  each  of  them  carrying  its  contingent 
of  armed  men  from  land  to  land,  and  pouring  them 
forth  on  quiet  shores  to  fight  and  ravage  and  destroy 
— these,  celebrated  with  sounds  of  Harp  and  Song, 
must  have  lived  in  the  memory  and  in  the  imagina- 
tion of  "  roving  tribes  and  rude  barbarians"1  from 
one  generation  to  another.  It  is  difficult  to  con- 
ceive anything  more  exciting  or  inspiring  to  wild 
men  inheriting  the  traditions  of  the  lawless  races, 
than  the  habitual  prosecution  of  war  in  picturesque 
Galleys  rounding  stormy  capes,  running  up  sheltered 
inlets,  pouncing  upon  enemies  unawares,  and  carry- 
ing off  the  harvests  and  the  cattle  of  all  who  were 
not  strong  enough  to  defend  them.  But  in  this,  as 
in  many  other  cases,  poetry  and  charm  were  the 
servants  of  corruption.  Civilisation  withered  before 
the  Clans,  so  long  as  their  Chiefs  were  uncontrolled 
by  higher  laws  than  the  usages  of  the  Celt. 

Having  now  glanced  at  the  causes  in  operation, 
let  us  look  at  their  actual  results.  In  round  numbers, 
300  years  elapsed  between  the  coronation  of  Robert 
the  Bruce  and  the  Union  of  his  Crown  with  that  of 
England.  Bruce  was  crowned  in  130G.  James  vi. 
succeeded  to  the  English  throne  in  1G03.  Calcu- 
lating, however,  not  from  the  Coronation,  but  from 

1  Johnson's  Journey  to  the  Hebrides. 


THE  EPOCH  OF  THE  CLANS.  189 

the  death  of  King  Robert,  the  period  embraced 
between  these  two  events  is  only  265  years.  It  is 
well  worth  while  to  note  the  working  of  Celtic 
Feudalism  during  this  time  of  little  more  than  two 
centuries  and  a  half. 

The  remainder  of  the  Fourteenth  Century,  in 
which  Bruce  did  his  work  and  died,  was  occupied 
by  the  reign  of  his  son  David  n.  (1329-1371),  of  his 
nephew  Robert  n.,  the  first  Sovereign  of  the  House 
of  Stuart  (1371-1390),  and  by  part  of  the  reign  of 
Robert  in.,  who  continued  to  occupy  the  throne 
during  the  first  six  years  of  the  following  or  Fifteenth 
Century  (1390-1406).  This  first  period  of  only  65 
years,  short  as  it  is  in  the  life  of  a  nation,  was 
marked  by  several  events  and  several  circumstances 
highly  significant  of  the  changes  which  had  begun. 
The  Chief  who  was  Lord  of  Islay  and  the  Southern 
Islands  had  been  faithful  to  the  cause  of  Bruce,  and 
had  been  rewarded  for  it.  But  he  and  King  Robert 
died  about  the  same  time,  and  his  son,  though  dis- 
tinguished in  many  ways,  and  a  great  favourite  of 
the  Church,  exhibited,  through  a  long  and  successful 
life,  that  striking  peculiarity  of  the  Celtic  race- 
that  their  fidelity  is  to  Persons  and  not  to  Principles. 
The  House  of  Isla  ceased  to  be  faithful  to  the  Crown 
of  Scotland  the  moment  Robert  the  Bruce  had  ceased 
to  wear  it.1  The  cause  of  Scotland  and  of  National 
independence  was  nothing  to  him.  His  father's 
King  and  companion  in  arms  was  dead,  and  John  of 
Islay  felt  free  from  fealty.  Within  15  years  of  the 

1  Gregory,  Hist.  p.  26. 


190  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

death  of  the  Great  King,  David  n.  had  serious  diffi- 
culty in  coming  to  a  peaceful  arrangement  with  this 
powerful  Chief.  Once  in  1344,1  and  again,  after  the 
lapse  of  25  years,  in  1369,2  the  same  danger  arose  of 
a  rebellion  of  the  whole  Insular  and  West  Highland 
population.  On  the  last  of  these  occasions  David  n. 
had  to  support  his  negotiations  by  large  military 
preparations. 

But  this  was  not  all ;  nor  was  it  by  any  means 
the  worst  indication  of  a  great  political  danger.  In 
spite  of  a  marriage  with  a  daughter  of  the  Steward 
of  Scotland,  who,  in  1371,  succeeded  to  the  Throne 
as  Robert  II.,  John  of  the  Isles  was  in  constant  com- 
munication with  the  English  Kings,  who  were  at 
perpetual  war  with  his  own  Sovereign,  and  were  the 
hereditary  enemies  of  the  independence  of  Scotland. 
To  such  an  extent  was  this  system  carried,  that  when 
in  1 3  8  8  a  temporary  truce  was  made  between  the  two 
countries,  the  agreement  was  openly  signed  on  one 
side  by  the  Lord  of  the  Isles  as  an  ally  of  the  King 
of  England.  Considering  that  by  an  earlier  marriage 
this  Lord  of  the  Isles  had  re-united  all  the  Northern 
Isles  with  the  great  possessions  of  the  Earldom  of 
Ross  on  the  mainland  of  the  Western  Highlands, 
we  can  estimate  the  formidable  danger  to  which  the 
Scottish  Monarchy  was  exposed  from  the  absolute 
powers  wielded  under  Celtic  Feudalism  by  such  a 
strong-handed  Chief  over  his  subject  Clans.  This 
danger  increased  under  the  succeeding  generation. 
John  of  Isla's  son,  Donald,  though  nearly  related 

'•  Gregory,  Hist.  p.  27.  ~  Tb'uL  p.  28. 


THE  EPOCH  OF  THE  CLANS.          191 

through  his  mother  with  the  royal  family  of  Scot- 
land,1 was  a  far  more  rebellious  subject  than  his  father. 
In  strict  accordance  with  the  tendency  to  increasing 
corruption  which  seems  to  have  been  inseparable 
from  the  unwritten  Feudalism  of  the  Celts,  his  dis- 
affection and  his  conduct  took  a  lower  and  an  almost 
purely  predatory  type.  In  1392  another  great 
Highland  Chief  gathered  his  following  of  the  Clans, 
burst  down  the  slopes  of  the  Grampians  upon  the 
oldest  and  most  settled  civilisation  of  the  East  of 
Scotland,  defeated  the  Lowland  forces  in  the  battle 
of  Gasclune,  and  ravaged  the  whole  districts  of 
Angus  and  the  Mearns. 

But  significant  as  these  events  are  of  the  nature 
and  tendency  of  Celtic  Feudalism,  I  am  not  sure  that 
they  are  so  significant  as  two  other  incidents  or 
passages  of  the  same  period,  which  in  themselves 
may  seem  more  grotesque  than  serious.  They  ex- 
hibit in  two  very  different  forms  the  dangerous 
attraction  which  savage  customs,  and  the  usages  of 
a  wild  or  lawless  life,  are  capable  of  exciting  over 
men  who  by  race,  birth,  and  education  have  risen  to 
higher  things. 

There  was  then  no  blood  in  Scotland  of  more 
purely  Norman  origin  than  the  House  of  Stuart. 
That  name,  as  is  well  known,  was  of  merely  official 
origin,  the  family  having  long  held  by  an  hereditary 
tenure  the  great  feudal  office  of  Seneschal,  or  High 
Steward  of  the  kingdom.  This  office  had  been 
granted  to  their  ancestor  in  the  reign  of  David  I., 

1  Gregory,  p.  29. 


192  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

and  therefore  some  time  before  1153.  It  had  been 
confirmed  by  a  Charter  of  Malcolm  iv.  in  1157. 
They  had,  therefore,  a  Scottish  history  and  pedigree 
running  through  more  than  200  years  at  the  time 
of  which  we  are  now  speaking.  But,  like  the  family 
of  the  Bruce,  they  had  come  over  to  England  with 
the  Conqueror,  and  had  been  first  settled  by  him  on 
great  manors  and  baronial  possessions  in  Shropshire, 
in  the  heart  of  England.  Alan,  the  son  of  Flathald, 
wras  the  name  of  the  Conqueror's  friend,  and  the 
title  of  Fitz  Alan,  now  united  with  the  Howards  of 
Norfolk,  comes  by  direct  descent  from  them.  Like 
the  Bruces  they  moved  northward  with  many  other 
Norman  Barons  when  the  connection  became  more 
intimate  between  the  Knighthood  of  the  two 
countries.  In  Scotland  they  became  the  founders  in 
11  GO  of  the  Great  Monastic  House  of  Paisley,  and. 
had  there  planted  a  branch  of  the  Cluniac  Monks 
from  an  older  Foundation  they  had  made  at  Wenlock. 
It  does  not  appear  that  they  had  any  Celtic  blood 
at  all  except  that  which  at  a  much  later  date  they 
inherited  through  their  marriage  with  a  daughter  of 
King  Robert  the  Bruce — -an  alliance  through  which 
they  at  last,  in  1371,  succeeded  to  the  Throne. 
Hobert  II.  was  the  eighth  in  descent  from  the  first 
High  Steward,  and  of  his  seven  predecessors  only 
one  seems  to  have  been  allied  by  marriage  with  any 
Celtic  House.  This  one  exception  was  the  fifth  High 
Steward,  who  married  a  daughter  of  James  Macrory, 
the  Lord  of  Bute — a  truly  Highland  name,  and  no 
doubt  of  as  purely  Celtic  origin  as  any  in  the  whole 


THE  EPOCH  OF  THE  CLANS.          193 

muster  of  the  Clans.1  The  small  Celtic  element, 
therefore,  which  existed  in  the  blood  of  the  Stuarts 
was  of  the  noblest  type — the  far-off  strain  of  Mal- 
colm Canmore,  reinforced  in  later  times  by  alliance 
with  those  descendants  of  Somerled  in  the  Southern 
Isles  who  were  most  faithful  to  the  cause  of  Bruce. 
It  would  be  difficult  to  conceive  an  original  descent, 
or  a  subsequent  line  of  succession,  or  a  course  of  life 
through  many  generations,  which  could  have  been 
better  adapted  to  implant  in  any  breed  of  men  the 
best  and  highest  tendencies  and  accomplishments 
of  their  age.  Born  and  bred  in  the  best  times 
of  chivalry,  seeing  and  taking  part  in  the  rising 
civilisation,  which,  from  Malcolm  Canmore  to 
Robert  the  Bruce,  was  amalgamating  the  Celt,  the 
Saxon,  the  Norman,  and  the  Norseman  into  one 
people,  and  consecrating  everything  that  was  good  in 
old  customs  under  the  strong  authority  of  equal  laws, 
the  Stuarts  ought  not  to  have  been  easily  tempted 
to  fall  back  into  barbaric  habits  of  which  they  could 
have  had  no  living  memory  or  tradition.  Yet  one  of 
the  most  prominent  occurrences  of  this  last  part  of 
the  Fourteenth  Century  was  the  part  played  in  the 
Highlands  by  a  member  of  this  great  Scoto-Norman 
family.  No  less  high  a  member  of  it  than  a  younger 
brother  of  the  first  Stuart  King,  Robert  n.,  was 
granted  great  landed  possessions  in  the  Central 
Highlands,  whilst  by  marriage  with  an  heiress  he 
acquired  also  the  extensive  lands,  or  many  of  them, 
belonging  to  the  old  Celtic  Earldom  of  Ross.  In 

1  Douglas's  Peerage,  s.v.  Albany. 
VOL.  I.  N 


194  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

this  position  he  at  once  found  himself  invested 
with  absolute  power  over  innumerable  Clans  who 
were  ready  to  "go  anywhere  and  do  anything " 
which  he  chose  to  direct.  Under  this  temptation 
he  developed  such  ferocity  of  character,  and  per- 
petrated such  deeds  of  cruelty,  that  he  acquired  in  his 
own  day,  and  has  since  been  known  in  history  as 
the  Wolf  of  Badenoch.1  A  recent  authority  has 
described  him  as  "a  species  of  Celtic  Attila."2  His 
son,  though  he  served  in  more  civilised  warfare  with 
the  chivalry  of  France,  seems  in  his  early  life  to  have 
been  a  worthy  representative  of  his  father.  He  be- 
came Earl  of  Mar,  and  was  a  considerable  figure  in 
his  day.  It  was  under  his  command  that  the  Clans 
were  launched  against  the  Lowlands  in  1392,  and 
routed  their  defence  in  the  battle  of  Gasclune.3 

The  second  incident  of  this  period,  wrhich  still 
more  curiously  illustrates  the  same  principles,  is  one 
which  stands  alone,  not  only  in  the  history  of  Scot- 
land, but  in  the  history  of  any  modern  nation.  The 
gladiatorial  shows  of  Rome  are  associated  in  our 
minds  with  the  worst  days  of  imperial  corruption, 
and  the  worst  degrading  exhibitions  of  Pagan 
customs.  They  have  had  no  counterpart  in  modern 
times.  In  the  days  of  chivalry  the  contests  of  the 
tournament  were  not  intended  to  be  deadly,  and, 
although  sometimes  loss  of  life  occurred,  this  was 
purely  by  mischance,  and  all  the  rules  of  the  game 
were  inspired  by  a  spirit  even  of  gentleness  as  well 

1  Burton's  History  of  Scotland,  vol.  iii.  pp.  97-9. 

2  Tytler,  vol.  iii.  p.  62.  3  Burton,  ut  supra. 


THE  EPOCH  OF  THE  CLANS.  195 

as  honour.  Yet  in  days  when  chivalry  had  not 
declined,  and  not  long  after  the  heart  of  the  Bruce 
had  been  cast  into  the  squadrons  of  the  Infidel  by 
the  Good  Lord  James  Douglas,  suddenly  we  hear  of 
a  scene  recalling  the  most  bloody  exhibitions  which 
aroused  the  savage  tastes  of  Nero  or  Caligula.  In 
that  beautiful  Valley  which  so  struck  the  Roman 
Legions,  that  when  it  burst  upon  them  from  the  top 
of  its  enclosing  hills,  they  threw  up  their  spears  and 
shouted  "  Ecce  Tiber," — on  the  fair  green  meadow 
which  borders  the  River  Tay,  and  is  called  the 
"  North  Inch  of  Perth,"— all  the  chivalry  of  Scot- 
land were  assembled  on  the  23d  of  October  1396,  to 
see  a  deadly  fight  between  two  bodies  of  wild  High- 
landers, sixty  in  all— thirty  on  either  side.  The 
King  himself  was  there,  with  all  his  Court  and 
Nobles,  and  a  vast  crowd  of  men  of  all  ranks  and 
stations.  The  combatants,  like  the  gladiators,  were 
devoid  of  defensive  armour,  and  were  to  fight  only 
with  their  native  weapons,  knives,  axes,  swords,  and 
bows.  So  exciting  was  the  scene,  and  such  was  the 
contagion  of  barbarism  which  it  induced  even  in 
peaceful  men,  that  on  the  flight  of  one  of  the 
Highlanders  who  dashed  into  the  Tay  and  escaped, 
one  of  the  spectators — an  artificer  of  Perth,  possibly 
of  Celtic  blood  —  came  forward  and  offered  the 
sacrifice  of  his  life  to  fill  up  the  blank.  This 
being  accepted,  the  bloody  work  proceeded.  At  the 
end  of  the  butchery,  on  one  side  only  one  man  re- 
mained alive,  on  the  other,  only  ten,  and  these  all 
wounded.  Nobody,  to  this  day,  can  make  out 


196  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

with  any  certainty  whence  these  men  came,  whom 
they  represented,  or  why  they  fought.  The  most 
favourable  view  of  it  is  that  it  was  a  Trial  by  Wager 
agreed  upon  as  a  means  of  settling  a  Clan  feud,  and 
of  preventing  still  more  extensive  bloodshed.  But 
there  is  no  satisfactory  evidence  that  it  settled  any- 
thing, or  that  it  was  ever  intended  to  do  so.  What- 
ever it  arose  from,  it  was  made  a  great  spectacle. 
An  enclosure  was  made  and  the  lists  were  kept.  As 
the  historian  tells  us,  "  It  was  the  nature  of  the 
beings  brought  together  to  fly  at  each  other  like 
wild  cats,  and  kill  in  any  way  they  could."  l  Such 
names  as  the  "  Clan  Kay  "  and  "  Clan  Qwhele " 
appear  in  the  chronicles  of  the  time  as  the  Lowland 
guesses  as  to  the  particular  Celtic  Clans  which  fur- 
nished the  victims.  These  names,  evidently  corrupt, 
have  been  plausibly  translated  into  the  Clan  Chattan 
and  the  Clan  Cameron.2  There  is  only  too  much 
reason  to  believe  that  the  ferocious  habits  of  the 
Clans,  having  then  become  notorious,  and  having  very 
probably  furnished  the  theme  of  exciting  stories, 
and  the  subject  of  sentimental  admiration  to  men 
who  saw  in  them  at  least  a  contempt  of  death, 
these  poor  Highlanders  had  been  bribed  by  the 
promise  of  reward  to  the  survivors,  to  furnish  forth 
this  horrid  spectacle  to  the  chivalry  of  Scotland, 
with  its  guests  from  France.  If  this  be  the  ex- 
planation— and  it  is  the  only  explanation  at  least  of 
the  publicity  of  the  scene — it  is  a  signal  illustration 
of  the  dangerous  attraction  which  some  races  have 

1  Burton,  vol.  iii.  p.  1'2.          3  Skene's  Celtic  Scotland,  vol.  iii.  pp.  314-15. 


THE  EPOCH  OF  THE  CLANS.  197 

exerted  by  their  barbarous  usages  upon  men  of  a 
far  higher  civilisation  than  their  own. 

With  the  exception  of  some  obscure  references 
in  the  old  Book  of  Deer,  in  which  such  family  names 
as  Morgan  are  spoken  of  as  representing  "  Clans " 
in  the  Lowlands  of  Buchan,  the  first  mention  of  this 
word  in  the  history  of  Scotland  stands  connected 
with  the  Gladiatorial  Exhibition  in  the  North  Inch 
of  Perth,  and  with  a  Brief  of  Robert  in.,  in  1390, 
against  the  murderous  followers  of  the  Wolf  of 
Badenoch.  I  speak  of  the  name,  or  the  word — 
not  of  the  thing  or  the  system  which  it  represents. 
That  system  is  as  old  as  the  existence  of  wild  and 
lawless  conditions  of  society  in  which  the  weak 
cluster  round  the  strong,  both  for  protection  and 
in  order  to  share  in  the  spoils  which  strength  only 
could  secure.  But  it  was  not  till  towards  the  close 
of  the  century  in  which  King  Robert  the  Bruce 
died  that  the  Scotch  people  recognised  the  new 
conditions  under  which  they  were  henceforth  to 
live  within  reach  of  the  race  which  had  so  often 
stood  shoulder  to  shoulder  with  them  in  the  battles 
of  Independence.  Somewhat  suddenly  their  eyes 
were  opened  by  a  bitter  and  a  new  experience. 
But  nine  years  before  the  spectacle  of  massacre 
between  the  "  Clan  Kay "  and  the  Clan  "  Mac- 
Quhele,"  the  Parliament  of  the  Kingdom  had  been 
compelled  to  take  notice  of  the  habits  which  were 
becoming  developed  under  the  licence  of  Celtic 
Feudalism.  In  1385  we  have  the  first  of  a  long 
series  of  statutes  passed  for  the  defence  of  the 


198  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

country  against  the  robberies  and  the  raids  of  those 
who  now  came  to  be  known  under  the  name  of 
"  Katherans."  All  the  subjects  of  the  Crown  were 
encouraged  and  exhorted  to  resist  and  to  arrest  them, 
and  it  was  provided  that  if  the  Katherans  resisted, 
the  killing  of  them  would  be  no  murder,  and  no 
crime.1 

With  these  events,  we  have  fully  entered  on  the 
epoch  of  the  Clans.  The  bloody  spectacle  on  the 
North  Inch  of  Perth  was  a  mere  outward  symptom 
of  more  serious  things.  In  the  first  law  directed 
against  the  Highlanders  as  Katherans — in  the  syste- 
matic treachery  of  the  Lords  of  the  Isles  towards 
the  national  cause — in  the  savage  rebellions  and 
ravages  of  the  Wolf  of  Badenoch  and  his  son- 
brother  and  nephew  of  the  King  (Robert  n.) — in 
their  power  to  wield  the  force  of  whole  hordes  of 
men  who  followed  them  without  any  real  tie  of  Tribal 
or  blood  relationship — we  see  the  dangerous  alliance 
between  the  absolute  despotism  of  Celtic  Chiefs  and 
the  mere  forms  of  Feudal  Law.  Most  of  these 
Chiefs  held  Charters  ;  but  they  used  these  Instru- 
ments of  legal  possession,  and  of  lawful  powers, 
only  as  blinds  and  covers  for  an  unwritten  code  of 
usages  utterly  without  law,  limit,  or  restraint.  The 
primeval  Tribal  system, — its  poetical  family  origin, 
and  its  peaceful  pastoral  associations, — -must  no 
longer  be  confounded  with  this  terrible  system  of 
military  aggregations  round  red-handed  Knights 
who  were  mere  deserters  and  apostates  from  a  higher 

1  Act.  ParL,  vol.  i.  pp.  ISG-7. 


THE  EPOCH  OF  THE  CLANS.  199 

civilisation.  The  sentimental  admiration  for  them 
and  for  their  followers  is  little  less  corrupting  now 
than  it  was  in  the  Fourteenth  Century.  It  is  a 
terrible  mixture  when  violence  and  anarchy  put 
on  the  robes  of  order  and  of  law,  and  plead  the 
authority  of  its  noblest  instruments  for  deeds  and 
principles  which  they  were  invented  to  rebuke  and 
to  supplant. 

One  of  the  most  careful  and  accurate  of  our 
national  historians  has  pointed  out  more  clearly 
than  others  the  fundamental  distinctions  between 
all  that  we  admire  in  the  theory  of  Tribal  Institu- 
tions, and  the  true  nature  of  the  Highland  Clans 
when  they  first  come  into  the  light  of  history. 
"  Powerful  Chiefs,"  he  says,  "  of  Norman  name  and 
Norman  blood  had  penetrated  into  the  remotest 
districts,  and  ruled  over  multitudes  of  serfs  and 
vassals,  whose  strange  and  uncouth  appellatives 
proclaim  their  difference  of  race  in  the  most  con- 
vincing manner." l  These  Chiefs  used  any  legal 
power  which  they  could  find  in  Charters  to 
strengthen  or  sustain  the  most  absolute  authority, 
but  without  themselves  conforming  to  any  feudal 
law  whatever,  either  in  their  relations  to  those 
below,  or  to  those  above  them.  At  a  later  period 
it  became  a  common  system  through  "  Bonds  of 
Manrent "  to  recruit  from  every  quarter  men  who  in 
return  for  protection,  and  for  employment  in  common 
robberies,  deliberately  bound  themselves  over  to  be 
obedient  followers  and  retainers.  Thus,  although 

1  Tytler's  Hirtory  of  Scotland,  vol.  iii.  p.  214. 


200  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

the  position  and  authority  of  Chiefs  was  generally 
founded  on  territorial  property,  it  was  to  a  great 
extent  independent  of  it — did  not  flow  from  the 
same  sources  of  legal  possession,  and  was  continually 
used  to  coerce  and  overawe  men  of  smaller  property 
who  could  not  command  the  same  armed  following. 

This  distinction  cannot  be  too  clearly  kept  in 
view,  because  it  is  fundamental  in  the  history  of  the 
Highlands  for  more  than  300  years.  It  was  not 
the  chartered  rights  of  landed  Ownership,  but  the 
unchartered  absolutism  of  Celtic  Chieftainship,  that 
made  the  Highlands  for  several  centuries  a  scourge 
to  themselves,  and  a  danger  to  the  nation.  It  can  be 
clearly  shown — so  deeply  marked  is  the  distinction 
—that  in  direct  and  exact  proportion  as  Highland 
Chiefs  and  Chieftains  could  be  induced,  or  were 
enabled  by  the  condition  of  the  country,  to  live  and 
spend  their  time  simply  as  great  Landowners,  with 
the  fullest  rights  of  property,  and  all  the  chartered 
powers  of  Baronial  Jurisdiction,  in  the  same  propor- 
tion did  the  districts  under  them  advance  in  wealth 
and  civilisation,  and  their  people  cease  to  be  a  terror 
to  those  around  them.  On  the  other  hand,  it  can 
be  shown  with  equal  clearness,  that  in  direct  pro- 
portion as  the  principal  families  in  the  Highlands 
were  purely  or  predominantly  Celtic,  leading  only 
the  life,  and  exercising  only  the  tremendous  powers 
of  Celtic  Feudalism,  in  the  same  proportion  did  the 
country  go  back  to  desolation,  and  the  people  to  the 
most  utter  barbarism. 

It  is  precisely  due  to  this  great  distinction  that 


THE  EPOCH  OF  THE  CLANS.  201 

we  have  a  corresponding  difference  between  two 
great  areas  of  the  country  which  are  separated 
from  each  other  by  a  well-marked  line  of  physical 
geography.  Roughly  speaking,  this  line  runs  along 
the  "  watershed "  of  the  mountains  from  which 
the  streams  divide  to  the  West  and  to  the  East 
— that  irregular  mass  of  hill  country  which  was 
anciently  called  Drumalban,  and  at  a  later  period  the 
"Mounth."  But  practically  we  may  take  the  divid- 
ing line  to  be  that  which  catches  every  eye  that 
looks  intelligently  to  the  map  of  Scotland, — the  line 
which  the  Celts  called  Glen  More — or  the  Great  Glen 
—running  across  the  whole  Island  from  south-west 
to  north-east,  and  occupied  by  the  chain  of  Lakes, 
of  which  advantage  was  taken  in  the  construction 
of  the  Caledonian  Canal.  The  whole  Highlands  to 
the  east  and  south  of  that  Great  Glen,  with  its  pro- 
longation southwards  among  the  Islands,  was  com- 
paratively accessible  to  the  advancing  civilisation  of 
the  Eastern  and  South-Eastern  Lowlands — a  civili- 
sation which  crept  up  slowly  but  surely  along  the 
Valleys  and  the  Firths  and  Lochs  leading  into  the 
areas  which  were  the  centres  of  the  early  Monarchy. 
On  the  other  hand,  all  the  Highlands  and  Islands 
which  lie  to  the  west  and  north  of  that  Great 
Glen  were  less  accessible  to  the  same  influences, 
were  more  exclusively  Celtic  in  their  population, 
and  were  more  absolutely  under  the  dominion  of 
Celtic  usages.  There  the  great  families  did  not 
live  merely  as  great  Proprietors,  but  altogether 
in  the  much  more  absolute  and  formidable 


202  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

character  of  small  Monarchs  commanding  the 
hereditary  services  of  an  armed  and  lawless  popula- 
tion. Clustering  round  the  memory  and  traditions 
of  two  Old  Celtic  Dignities — the  Lordship  of  the 
Isles,  and  the  Earldom  of  Ross — and  fighting 
fiercely  with  each  other,  first  for  the  succession  to 
these,  and  next  for  the  possession  of  the  bits  and 
fragments  of  them — the  West  Highland  Clans  lived 
perpetually  such  a  life  of  war  and  rapine  as  that 
which  was  only  too  closely  imitated  by  the  great 
Norman  Baron  who  disgraced  the  blood  of  Robert 
the  Bruce  under  the  name  of  the  Wolf  of  Badenoch. 
Gregory,  in  his  History  of  the  Highland  Clans,1  was 
the  first  to  point  out  clearly  this  great  geographical 
distinction,  which  marks  a  corresponding  distinction 
in  the  social  and  political  development  of  the  two 
districts.  He  goes  so  far  as  to  say  that  the  history 
of  the  Eastern  and  Western  Highlands  cannot  be 
written  in  the  same  book.  This  is  a  great  exaggera- 
tion. Neither  in  geography  nor  in  social  condition 
was  there  any  hard  and  fast  line.  Glenmore  was 
not  impassable  to  the  Clans  on  either  side,  neither 
was  it  impassable  to  habits  and  institutions. 
Charters  and  Leases  existed  in  the  West,  and  Clan 
feuds  and  fights  were  not  wanting  in  the  East. 
Still,  it  is  true  that  on  the  western  side  of  the  line 
the  written  laws  of  property  were  long  submerged 
under  the  unwritten  codes  of  Celtic  usage,  whilst  on 
the  eastern  side  these  became  gradually  checked  and 
subordinated  to  the  precepts  of  a  settled  jurispru- 

1  tiff  Preface,  pp.  i.-ii. 


THE  EPOCH  OF  THE  CLANS.          203 

dence.  This  was  the  root  and  cause  of  the  differ- 
ence between  the  two  areas,  and  it  is  one  which 
arises  out  of  the  very  nature  of  things.  The  cor- 
ruption of  human  nature  is  a  law  which  we  cannot 
afford  to  abandon  to  the  theologians.  Historians 
and  politicians  must  take  note  of  it  as  the  whole 
secret  of  the  most  characteristic  facts.  Hence  comes 
the  danger  of  mere  usages  as  distinct  from  laws. 
All  usages  tend  to  abuse,  from  which  nothing  can 
keep  them  except  the  arresting  barriers  of  written 
law  and  recorded  judgments.  It  is  the  grossest  of 
all  errors  that  traditional  customs  tend  to  the  pre- 
servation of  popular  liberties.  They  tend  on  the 
contrary  to  the  exaggeration  of  power,  and  to  the 
continual  aggrandisement  of  the  strong.  There 
may,  indeed,  be  usages  which  rise  to  the  dignity  of 
laws,  and  every  civilised  system  of  jurisprudence 
recognises  as  such  all  customs  which  are  capable  of 
definition,  and  can  be  classed  as  the  real  but  unex- 
pressed conditions  under  which  all  Covenants  were 
made.  But  Society  cannot  be  built  up  on  the  quick- 
sands of  shifting  memories,  and  of  loose  allegations 
incapable  of  proof.  These  are  always  wrested,  as 
we  have  seen  that  Celtic  Feudalism  did  wrest  them, 
to  strengthen  and  to  aggravate  the  abuses  of  per- 
sonal strength  and  of  personal  ambition. 

We  can  see  then  how  it  was  that  for  300  years, 
after  the  close  of  the  century  in  which  King  Robert 
the  Bruce  had  done  his  great  work  of  amalgamation, 
that  work  was  being  steadily  undone,  as  far  as  they 
could  undo  it,  by  the  Celtic  Clans.  In  the  eleventh 


204  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

year  of  the  new  century,  in  1411,  Donald,  Lord  of 
the  Isles,  with  an  army,  it  is  said  of  10,000  Clans- 
men, attempted  the  overthrow  of  the  Scottish  King- 
dom by  a  regular  invasion.  They  were  with  difficulty 
repulsed  in  the  bloody  battle  of  Harlaw ;  and  the 
final  but  hard-won  victory  of  the  Lowland  forces 
was  universally  felt  in  Scotland  to  be  a  deliverance 
not  less  happy  than  the  deliverance  which  had  been 
achieved  at  Bannockburn.  One  signal  note  of  its 
value  is  to  be  found  in  the  circumstance  that  the 
contagion  of  Celtic  Feudalism  had  done  its  worst. 

o 

Alexander,  Earl  of  Mar,  son  of  the  Wolf  of  Bade- 
noch,  had  now  returned  to  the  allegiance  of  his 
blood  and  race.  He  commanded  the  Lowland 
gathering:  of  that  higher  Feudalism  which  rested 

o  o  o 

on  written  Charters,  and  on  loyalty  to  acknowledged 
obligation.  Under  this  banner  of  civilisation  he 
distinguished  himself  by  the  most  desperate  valour. 
The  Eastern  Highlands,  therefore,  in  the  person  of 
one  of  its  most  powerful  Chiefs,  were  now  com- 
mitted to,  and  associated  with  the  same  cause. 

Twelve  years  later,  in  the  Fifteenth  Century,  we 
enter  on  the  period  of  "  The  Jameses."  The  first 
Sovereign  of  that  name,  and  perhaps  the  most  dis- 
tinguished, assumed  the  crown  in  1424.  He  and 

o  * 

five  successors  of  the  same  name,  with  the  tragic 
interlude  of  Mary,  occupy  the  179  years  which 
elapsed  before  the  sixth  James  succeeded  to  the 
English  throne.  No  more  troubled  and  turbulent 
time  has  perhaps  ever  passed  over  any  people  which 
still  retained  the  elements  of  progress  and  of  civi- 


THE  EPOCH  OF  THE  CLANS.  205 

lisation.  But  in  spite  of  all  the  years  of  war,  re- 
bellion, anarchy,  and  bloodshed,  those  elements 
were  retained,  and  some  of  the  most  fruitful  of  them 
were  strengthened  and  developed.  The  Clergy  of 
the  Latin  Church  had  not  yet  learned  to  be  afraid 
of  Learning,  and  under  their  influence  the  Fifteenth 
Century  saw  the  foundation  of  the  three  oldest  Uni- 
versities in  Scotland,  St.  Andrews,  Glasgow,  and 
King's  College,  Aberdeen.  Some  sound  and  excel- 
lent legislation,  as  we  have  already  seen,  was  passed 
for  the  restraint  of  violence,  and  for  the  encourage- 
ment and  security  of  Covenants  between  man  and 
man.  A  Supreme  Court  was  established  for  the 
administration  and  interpretation  of  the  law,  and 
some  steady  progress  was  made,  both  by  new  enact- 
ments and  by  systematic  decisions,  in  the  general 
understanding  of  civil  obligations.  In  the  south- 
western mainland  of  the  Highlands,  as  well  as  in 
the  eastern  Highlands,  the  growing  power  and  in- 
fluence of  the  Chiefs  who  had  taken  part  with  Bruce, 
and  who  continued  faithful  to  the  Monarchy  he 
had  restored,  were  turning  to  good  account, — as 
loyal  men  can  always  turn  them, — the  force  and 
fidelity  of  their  Clans.  But  with  this  exception,  the 
working  of  Celtic  Feudalism  during  the  whole  of  the 
Fifteenth,  and  the  whole  of  the  Sixteenth  Centuries, 
presents  little  more  than  one  continued  spectacle  of 
all  the  worst  vices  which  can  afflict  or  destroy  a 
nation.  So  long  as  the  Lordship  of  the  Isles  ex- 
isted, or  the  Earldom  of  Ross,  the  Islanders  under 
those  Chiefs  were  systematically  disloyal  to  the 


206  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

Scottish  Monarchy.  In  1462  they  entered  into  a 
formal  treaty  with  Edward  iv.  of  England,  for  the 
subjection  and  partition  of  the  Kingdom.1  This  led 
to  the  final  suppression  of  the  Earldom  of  Ross  and 
its  annexation  to  the  Crown.2 

But  treachery  to  the  Monarchy  was  only  replaced 
by  treachery  to  each  other  among  all  the  Clans  and 
Chiefs,  between  whom  the  spoils  were  divided. 
There  is  no  more  miserable  history  than  the  history 
of  the  Highland  and  Island  Clans  during  this  period. 
If  we  silence  our  moral  judgment  altogether,  it  is 
of  course  possible  to  pick  out  picturesque  incidents, 
and  to  bestow  our  admiration  here  and  there  on 
displays  of  mere  animal  courage.  But  when  one 
compares  this  wretched  epoch  with  the  older  and 
nobler  time  when  one  great  man  had  taught  the 
Celtic  population  of  the  Highlands  how  to  fight 
in  a  great  cause  and  for  a  great  purpose,  it  is  im- 
possible not  to  turn  with  disgust  from  a  perpetual 
recurrence  of  plunder  and  devastation,  of  cruel  mas- 
sacres, and  of  the  most  treacherous  murders.  Even 
where  the  Celtic  Chiefs  were  induced  sometimes  to 
send  some  contingent  to  strengthen  the  national 
army,  they  could  hardly  be  withheld  from  fighting 
out  their  own  feuds  and  quarrels  in  the  presence  of 
the  common  enemy.  Sometimes,  even  in  moments  of 
common  misfortune,  and  of  national  overthrow,  the 
passions  of  Celtic  Feudalism  could  not  be  restrained 
from  atrocious  acts.  On  the  fatal  field  of  Flodden, 
when  the  King  and  half  the  nobles  of  his  Kingdom, 

1  Gregory,  History  of  the  Clans,  p.  47.  '  Ibid.  p.  50. 


THE  EPOCH  OF  THE  CLANS.  207 

with  a  corresponding  proportion  of  their  men,  fell 
under  the  spears  and  arrows  and  battle-axes  of  the 
English  army,  it  is  related  of  a  Highlander  of  the 
Clan  Mackenzie,  that  he  heard  those  near  him  ex- 
claiming, "Alas!  Laird,  thou  hast  fallen."  "What 
Laird  ? "  shouted  the  Celtic  Clansman.  In  the 
answer,  "  the  Laird  of  Buchanan,"  he  heard  a  name 
with  which  his  own  had  a  blood-feud.  Then  and 
there  the  "faithful  Highlander,"  as  he  is  called  by  the 
sympathetic  historian,  sought  out  the  fallen  Laird, 
found  that  he  was  only  wounded,  and  butchered 
the  helpless  man  without  ruth  or  pity.  Even 
this,  however,  is  by  no  means  the  most  revolting 
kind  of  deed  which  was  only  too  common  among 
the  Clans.  There  was  one  Chief  of  the  name  of 
Macian,  possessing  Ardnamurchan,  who  was  in  per- 
petual feud  with  the  Macleans  of  Mull.  But  the 
softer  passion  on  one  occasion  brought  about  an 
apparent  reconciliation,  when  the  Chief  Macian  was 
a  suitor  for  the  hand  of  a  daughter  of  Maclean.  In 
1588  the  Macians  were  cordially  invited  under  as- 
surance of  peace,  to  come  to  the  wedding  of  their 
Chief.  The  wedding  over,  with  feast  and  wassail, 
and  one  of  the  houses  of  the  country  assigned  to 
the  wedded  pair, — in  the  middle  of  the  night  the 
Macians  were  surrounded  by  the  Macleans  and  mas- 
sacred to  a  man — the  Chief  only  being  spared  to  the 
shrieks  and  entreaties  of  his  wife.1  In  a  raid  of  the 
Clanranald  against  the  Mackenzies  of  Kin  tail,  a  whole 
congregation  was  burned  to  death  in  the  Church  of 

1  Gregory,  History  of  the  Clans,  pp.  238-9. 


208  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

Gilchrist,  whilst  the  piper  of  the  Macdonalds  played 
round  the  building  to  drown  the  frantic  cries  of  the 

o 

victims.  This  was  so  late  as  1603,  the  year  of 
James  vi.'s  accession  to  the  English  crown.1 

In  visiting  the  lofty  and  striking  precipice  which 
surmounts  the  Island  of  Eigg,  called  the  "  Scoor," 
every  stranger  is  shown  a  spot  where  a  similar 
atrocity  was  committed.  In  the  standing  feud 
between  the  Macdonalds  and  Macleods  the  whole 
population  of  Eigg,  invaded  by  a  superior  force,  had 
taken  refuge  in  a  cave,  the  entrance  to  which  is 
narrow  and  concealed.  Here  they  were  discovered, 
and  the  Macleods  enjoyed  the  savage  pleasure  of 
smoking  the  whole  of  them  to  death,  some  200  in 
number,  by  fires  lighted  at  the  mouth.  When  Sir 
Walter  Scott  visited  the  cave  in  1814,  the  bones  of 
the  victims  still  covered  the  floor,  and  he  carried  off 
a  skull  which  seemed  to  be  that  of  a  young  woman.2 

It  is  needless  to  say  that  where  human  life  was 
so  little  regarded,  property  was  still  more  universally 
held  as  a  prey  to  the  spoiler.  Occasionally  we  have 
details  of  the  ravages  committed.  Thus,  in  1455, 
the  Islanders  attacked  the  Southern  districts  of 
Cumbrae  and  Arran,  from  which  they  took  500 
horses,  10,000  cattle,  and  more  than  1000  sheep  and 
goats.3  In  this  case  it  is  specially  mentioned  that 
the  Clans  did  not  murder  more  than  a  score  of  men, 
women,  and  children.  Such  robberies  as  these,  and 

1  Gregory,  History  of  the  Clans,  p.  303. 

2  Lockhart's  Life  of  Scott,  vol.  iii.  p.  240. 

3  Gregory,  History  of  the  Clans,  p.  44. 


THE  EPOCH  OF  THE  CLANS.  209 

they  were  common,  must  have  reduced  whole 
districts  to  poverty  for  many  years.  In  a  long- 
standing feud  between  the  Macleods  of  Skye  and 
the  Mackenzies  of  Lewis,  we  are  told  that  at 
one  time,  about  the  close  of  the  Sixteenth  Cen- 
tury, both  Clans  were  reduced  to  the  verge  of  ruin, 
and  that  the  people  had  to  live  on  horses,  dogs,  and 
cats.1 

These  are  but  a  few  examples  of  the  whole 
course  of  history  in  the  Islands  and  Western 
Highlands  during  the  Fifteenth  and  Sixteenth 
Centuries.  It  will  be  obvious  that  such  a  condition 
of  things  tended  inevitably  to  render  more  and  more 
absolute  the  power  of  the  Chiefs  over  all  whom  they 
recruited  to  become  members  of  their  Clan.  To  be 
under  the  protection  of  some  powerful  Chief  was 
the  only  chance  of  enjoying  any  peace  or  any  safety 
for  the  dependent  classes.  Those  of  them  who  were 
themselves  little  better  than  soldiers  of  fortune  had 
indeed  a  different  inducement  with  the  same  result. 
Accordingly,  the  Crown  and  Government  of  the 
Kingdom,  in  their  perpetual  contests  with  the 
Western  Chiefs,  determined,  in  1496,  to  assume, 
as  they  had  a  good  right  to  do,  that  those  Chiefs 
were  really  responsible  for  everything  done  or  left 
undone  among  those  over  whom  they  ruled  so 
absolutely.  An  Act  passed  by  the  Lords  of  the 
Council  in  that  year  provided  that  the  Chief  of 
every  Clan  should  be  held  responsible  for  the  due 
execution  of  all  legal  writs  against  the  men  of  his 

1  Gregory,  History  of  the  Clans,  p.  290. 
VOL.  I.  O 


210  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

own   Clan,  under  penalty    of  being   himself  made 
liable  to  tbe  party  bringing  the  action.1 

Not  long  after,  in  1502,  the  Government  tried 
to  deal  with  the  great  evil  of  a  purely  military 
population,  the  obedient  followers  of  the  Chiefs, 
settling  in  the  country,  to  the  exclusion,  or  supplant- 
ing, perhaps,  of  the  older  settled  population  who 
may  have  been  the  truer  representatives  of  the 
ancient  Clans.  In  dealing  with  lands  resumed  by 
the  Crown  in  Lochaber,  the  Royal  Commissioners 
were  desired  to  let  the  lands  for  five  years  to  "  true 
men  "  —that  is,  men  loyally  affected  to  the  Crown— 
and  to  expel  all  "  broken  men  "  from  the  district. 
This  was  the  regular  Parliamentary  phrase  now 
established  by  which  the  military  following  of  Chiefs 
was  designated ;  and  so  numerous  had  this  class 
become  that  the  historian  observes  of  this  part 
of  the  country,  that  in  the  state  of  affairs  then 
prevalent,  the  order  of  the  Lords  of  Council  "  \vas 
equivalent  to  an  order  to  expel  the  whole  popula- 
tion." But  here  it  is  important  to  observe  that 
the  Commissioners  were  ordered  to  exert  upon  the 
Crown  lands,  in  Lochaber,  exactly  the  same  full 
rights  and  powers  of  Ownership,  which  the  Highland 
Chiefs  had  long  been  exerting  upon  their  own  lands. 
In  both  cases  the  Proprietors  of  those  lands  were 
disposing  of  them  in  favour  of  men  who  could  be 
counted  upon  as  ' '  true  "  to  them.  It  was,  in  fact, 
a  process  of  a  "  plantation  " — that  is  to  say,  the 
colonising  of  certain  lands  with  Tenants  who  would 

1  Gregory,  Hist,  of  Clans,  p.  91.  2  Ibid.  p.  07. 


THE  EPOCH  OF  THE  CLANS.  211 

be  loyal  to  the  Owner  of  them.  If  the  truth  could 
now  be  fully  traced,  and  if  we  could  exactly  see  how 
large  tracts  of  Highland  country,  which  had  been 
devastated  by  murderous  raids,  came  to  be  re- 
peopled  and  re-settled  by  so-called  "  Clansmen," 
we  should  probably  discover  that  in  numberless 
cases  the  process  was  the  same,  and  that  Clans  were 
largely  recruited,  if  not  sometimes  almost  wholly 
replaced  by  "  broken  men "  enlisted  from  other 
districts.  Such  men  owed  everything  they  had 
in  the  new  plantation  to  the  Lords  and  Owners  of 
the  soil  on  which  they  came  to  seek  employment 
and  protection.  Here  and  there  a  case  is  recorded 
which  may  well  lead  us  to  suspect  how  common  it 
must  have  been.  One  of  these  occurs  in  the  history 
of  those  Eastern  Highlands  which  were,  on  the 
whole,  so  much  less  troubled  than  the  Western.  It 
is  a  hideous  story  which  is  told  in  the  Chiefs  of 
Grant^1  In  revenge  for  the  murder  of  a  kinsman 
somewhere  in  the  valley  of  the  Dee,  the  Chief  of 
Grant  had  incited  and  joined  the  Earl  of  Huntly  in 
slaying  all  the  men  in  the  country  of  the  Dee  where 
the  murder  had  taken  place.  Some  time  after,  on 
visiting  Huntly  at  his  castle  of  Strathbogie,  he  was 
shown  between  sixty  and  eighty  orphan  children 
who  had  been  carried  off  when  their  fathers  were 
slain,  and  were  now  fed  at  one  long  trough,  as  pigs 
are  fed,  one  row  of  children  eating  at  each  side. 
This  sight  is  said  to  have  caused  such  remorse  to 
the  Chief  of  Grant  that  he  carried  off  the  whole  of 

1  Vol.  i.  p.  113,  note. 


212  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

these  children  from  one  side  of  the  trough  and  took 
them  to  his  own  estate  on  Strathspey,  where  they 
were  settled,  taking  the  name  of  Grant,  whilst  those 
on  the  other  side  of  the  trough  were  in  like  manner 
kept  by  Huntly,  and  took  the  name  of  Gordon. 

If  these  things  were  sometimes  done  in  the 
green  tree  of  the  Eastern  Highlands,  how  often  must 
they  have  been  done  in  the  dry  tree  of  the  Western 
Clans  !  It  is  beyond  doubt  that  a  large  part  of  the 
population  of  the  Highlands  are  the  descendants  of 
men  who  were  moved  about  and  planted  from  time 
to  time  by  the  Chiefs  who  disposed  of  their  lands, 
whether  acquired  by  inheritance  or  by  conquest, 
precisely  as  the  Crown  disposed  of  the  Braes  of 
Lochaber,  and  as  the  Grants  disposed  of  the  upper 
valley  of  the  Spey.  In  the  Western  Highlands, 
however,  the  Chiefs  had  a  somewhat  different  end  in 
view.  In  Lochaber  the  King  planted  men  who  were 
to  be  real  farming  Tenants,  holding  under  Leases 
with  their  settled  Covenants,  and  definite  rents. 
In  the  Northern  and  Eastern  Highlands,  such 
families  as  the  Chiefs  of  Grant  aimed  always  princi- 
pally at  the  settlement  and  improvement  of  their 
country.  The  Island  and  Highland  Chiefs,  on  the 
other  hand,  planted  men  who  were  to  be  devoted 
mainly  to  fighting,  whilst  the  possessions  of  the 
real  old  native  population  in  corn  or  cattle  were  to 
be  held  subject  to  the  arbitrary  exactions  of  the 
most  lawless  Celtic  Feudalism. 

The   state    of  things   which   had   again   arisen 
among  the  Western  Isles   towards,  and  after   the 


THE  EPOCH  OF  THE  CLANS.  213 

close  of  the  Sixteenth.  Century,  is  indeed  hardly  con- 
ceivable as  co-existing  with  a  national  Government 
in  Scotland.     It  was  almost  if  not  quite  as  bad — as 
dangerous  and  as  discreditable — as  it  had  been  four 
hundred  years  before,  in  the  days  of  Somerled  and 
of  his   immediate   descendants.      The    Chief   who 
styled  himself  Lord  of  the  Isles,  Macdonald,  Lord 
of  Islay  and   Kintyre,   affected  all  the    airs,    and 
assumed  all  the  powers  of  an  independent  Prince. 
He  did  exactly  what  King  Robert  the  Bruce  had 
promised,  some  two  hundred  and  sixty  years  earlier, 
he  would  not  allow  his  subjects  to  do,  namely,  to 
attack  England   through  her   rebellious    Irish.    In 
1595,  Queen  Elizabeth  was  in  serious  trouble  from 
Tyrone's  rebellion.     Whether  from  hostility  to  the 
Reformed  faith,  of  which  Elizabeth  was  the  great 
supporter  in  Europe,  or  from    other   motives,   the 
Macdonalds,  both  of  Islay  and  of  Skye,  allied  them- 
selves with  Tyrone,  and  were  ready  with  a  great 
fleet  of  galleys  and  a  formidable  force  to  land  in 
Ireland,  and  reinforce  the  rebels.     But  the  astute 
Queen  had  friends  as  well  as  enemies  among  the 
"Western  Celts.     The  old  loyalty  of  the  Campbells 
to  the  Monarchy  of  Bruce,  and  their  new  loyalty  to 
the  Protestant  religion,  combined  to  hold  them  true 
against  an  alliance  so  hostile  to  both  as  the  alliance 
between  the  Clan  Donnell  and  the  Romish  Celts  of 
Ireland.     Accordingly  the  Earl  of  Argyll,  in  coun- 
ter alliance  with  the  Macleans  of  Douart,  and  with 
some  other  septs,  collected  so  large  a   force,   and 
placed  it  in  so  strong  a  flank   position,  that  the 


'"214  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

Macdonalds  did  not  dare  to  pursue  their  expedition, 
and  to  leave  their  own  territories  to  devastation. 
Other  means,  moreover,  were  employed.  The  great 
Ministers  who  served  Elizabeth  so  well  kept  her  well 
informed.  Divisions  were  sown  among  the  Clans  ; 
preparations  were  made  in  time  to  meet  them,  so 
that  when  a  small  portion  of  their  fleet  reached  the 
coast  of  Ireland,  they  were  easily  dispersed,  and  this 
new  insular  armada  dissolved  and  disappeared. 

In  this  incident  we  see  how  little  centuries 
had  done  to  change  the  nature  of  the  Clans. 
Moreover,  we  have  a  sketch  of  one  man  in  par- 
ticular, to  show  how  little  time  had  changed  the 
nature  of  the  Chiefs.  The  description  presented  to 
us  in  history  of  the  person  and  character  of  James 
Macdonald  of  Dunluce,  cousin  of  the  Lord  of  Islay 
and  Kintyre,  reproduces  towards  the  close  of  the 
Sixteenth  Century  all  the  essential  characteristics 
which  we  have  seen  marking  the  career  of  the  Wolf 
of  Badenoch  towards  the  close  of  the  Fourteenth. 
There  is  the  same  mixture  of  Lowland  culture,  of 
wide  acquaintance  with  men  and  things,  and  of 
fierce  and  unscrupulous  conduct  in  the  exercise  of 
an  absolute  local  power.  "  He  seems,"  says  Tytler, 
"  to  have  been  a  perfect  specimen  of  those  Scoto- 
Hebridean  Barons,  who  so  often  concealed  the 
ferocity  of  the  Highland  freebooter  under  the 
polished  exterior  which  they  had  acquired  by  an 
occasional  residence  in  the  Low  Country."  It  was 
his  pleasure  sometimes  to  join  the  Court  at  the 
Palaces  of  Falkland,  Linlithgow,  or  Holyrood. 


THE  EPOCH  OF  THE  CLANS.  215    ... 

There  he  was  the  gayest  among  the  gay,  giving  rich 
presents  to  the  Queen  and  her  ladies,  and  fascinat- 
ing all  observers  by  the  splendour  of  his  tastes,  and 
the  graces  of  his  person  and  manners.  But  suddenly 
some  news  from  the  West  would  trouble  him,  and 
then  "Macsorlie" — this  accomplished  gentleman — 
would  fly  back  to  his  native  Island,  and  revel  in  the 
worst  atrocities  of  the  Clans.1  This  man,  however, 
had  perhaps  acquired  from  his  connection  with  the 
Celts  of  Ireland  an  exceptional  ferocity.  For  in 
Ireland  Celtic  Feudalism  had  long  reached  the 
lowest  stages  of  violence  and  corruption.  But  the 
Hebridean  Chiefs  were  too  closely  connected  with 
those  of  Antrim  to  escape  the  desperate  contagion. 
And  so  we  have  another  member  of  the  Clan  Donald 
— a  cousin  of  "  Macsorlie,"  who  seems  to  have  been 
by  no  means  behind  his  kinsman  of  Dunluce.  This 
was  the  son  of  the  Lord  of  Isla  and  Kintyre,  also 
highly  favoured  at  the  Court  of  James  I.,  knighted 
by  that  Sovereign,  and  conspicuous  in  the  history 
of  the  time  as  Sir  James  Macdonald.  Of  this  man 
the  incredible  atrocity  is  recorded  that  in  order  to 
accomplish  the  death  of  some  feudal  enemy,  he  set 
fire  to  the  house  where  his  own  father  and  mother 
were  living  at  the  time.  Escaping  with  difficulty, 
and  severely  burnt,  the  father  was  confined  in  irons 
for  several  months — until,  probably,  he  had  consented 
to  the  transfer  of  his  authority  by  a  premature  suc- 
cession.2 Assuming  the  command  of  the  Clan,  Sir 

1  Tytler's  History  of  Scotland,  vol.  ix.  pp.  252-3. 

2  Gregory's  Highlands,  pp.  281-2. 


216  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

James  was  soon  involved  in  a  furious  contest  with 
the  Macleans  of  Douart,  the  circumstances  of  which 
are  variously  narrated,  but  which  in  the  pages  of 
Tytler1  appear  as  an  additional  example  not  only 
of  ferocity,  but  of  the  basest  treachery.  Maclean 
was  an  uncle  of  Sir  James,  but  he  was  a  firm  friend 
of  Queen  Elizabeth,  and  of  that  Protestant  cause  of 
which  she  was  the  rallying  centre,  and  the  standard- 
bearer.  The  Macdonalds  seem  to  have  all  been  more 
or  less  in  league  with  the  Irish  enemies  of  the  Queen, 
and  the  determined  enemies  of  the  Clans  who  were 
most  loyal  to  the  Scottish  Monarchy.  On  this 
occasion  Douart  and  most  of  his  men  were  slaugh- 
tered, and  the  Cause  in  which  they  had  fought 
together,  fell  chiefly  into  the  hands  of  the  Campbells. 
The  interest  of  these  stories,  however,  does  not 
lie  either  in  the  illustrations  of  individual  character, 
or  even  in  the  picture  they  present  of  the  habits  and 
manners  of  the  time.  It  lies,  rather,  in  the  evidence 
they  afford  as  to  the  condition  of  the  people.  It  is 
quite  certain  that  they  were  absolutely  at  the  dis- 
posal of  their  Chiefs.  Even  when  these  Chiefs  did 
not  use  them  as  soldiers,  but  left  them  to  cultivate 
the  ground,  and  employed  mercenaries,  all  the  re- 
sources by  which  these  mercenaries  were  sustained 
came  out  of  the  ceaseless  and  unlimited  exactions 
from  the  native  husbandmen,  which  were  the  inse- 
parable concomitant  of  Celtic  Feudalism.  All  the 
minor  Chieftains  and  all  the  retainers  of  the  Chiefs 
were  quartered  on  the  people  of  the  country,  who 

1  Tytlers  History  of  Scotland,  vol.  ix.  p.  251. 


THE  EPOCH  OF  THE  CLANS.  217 

were,  besides,  liable  to  be  cleared  off  and  removed 
as  a  matter  of  regular  bargain  among  the  Chiefs 
when  they  treated  with  each  other  for  exchanges  or 
extensions  of  territorial  possession.  The  delusion 
that  prehistoric  "  Tribal  rights "  had  outlived  the 
transforming  processes  of  Clanship,  and  the  absolute 
dependence  of  the  people  for  many  centuries  on 
military  Chiefs,  is  a  delusion  which  is  effectually  dis- 
pelled if  we  look  for  a  moment  at  the  historical  facts 
which  emerge  in  all  the  transactions  of  this  time. 
Thus  it  was  one  of  the  conditions  offered  to  the 
Crown  by  Sir  James  Macdonald,  in  return  for  cer- 
tain advantages,  that  he  would  give  up  Kintyre 
and  remove  "  his  whole  Clan  and  dependers  "  from 
it,  so  that  the  lands  should  be  completely  cleared, 
and  placed  at  the  disposal  of  the  Crown  for  the  re- 
letting  of  it  to  new  Tenants.1  The  Island  of  Coll 
had  been  similarly  cleared  in  1596  by  the  Macdonalds.2 
Everywhere  and  in  everything  the  Chiefs  were 
absolute,  and  the  more  Celtic  Institutions  were 
allowed  their  full  development,  the  more  abject 
became  the  condition  of  the  people. 

And  now  let  us  see  the  consequences.  The  evi- 
dence comes  to  us  in  the  most  formal  and  authentic 
shape.  Soon  after  James  vi.  united  the  two  Crowns, 
he  resolved,  as  so  many  of  his  ancestors  had  resolved 
before  him,  to  restore  peace  and  law  to  the  Islands 
and  Highlands  of  his  native  country.  After  several 
abortive  expeditions  and  negotiations,  for  this  pur- 
pose he  appointed  a  special  Commissioner  who  was 

1  Gregory,  p.  288.  2  Ibid.  p.  269. 


218  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

to  visit  the  Hebrides  and  call  the  Chiefs  to  a 
friendly  conference.  The  Commissioner  selected 
was  the  minister  who  had  accepted  the  Bishoprick 
of  the  Isles  and  the  Deanery  of  lona,  under  the 
new  Episcopacy  which  James  had  then  restored. 
Whatever  doubts  the  Presbyterian  people  of  Scot- 
land may  have  had  as  to  the  constitutional  character 
of  the  proceedings  under  which  the  Restoration  had 
been  effected,  no  such  doubts  could  affect  the  Island 
Chiefs.  Constitutional  illegality  was  the  very  last 
thing  that  could  offend,  or  even  be  observed  by 
Highlanders  amongst  whom  the  Heformed  faith  and 
the  Presbyterian  Church  had  as  yet  made  but  little 
way.  They  were  probably  rather  conciliated  by 
this  renewal  of  an  ancient  Dignity,  and  they  came 
in  numbers  to  meet  the  Commissioner  of  the  Crown. 
The  place  of  meeting  was  wisely  selected  as  one  that 
was  attractive  to  them.  It  was  that  Holy  Island,  in 
whose  ancient  Churchyard  all  the  Kings  and  Chief- 
tains of  the  Isles  had  been  buried  for  900  years. 
Their  descendants  seem  to  have  come  willingly  to 
the  place  where  probably  many  of  them  had  come 
before  to  bury  their  own  Dead,  in  the  same  sacred 
soil.  And  there  they  finally  came  under  certain 
solemn  engagements,  founded  on  a  narrative  and 
confession  as  to  existing  evils,  which  have  become 
known  in  Scottish  history  as  the  "  Statutes  of  lona." 
These  authentically  reveal  to  us  both  the  condi- 
tion to  which  the  country  had  been  reduced  and  the 
causes  which  were  now  acknowledged  to  be  at  the 
root  of  its  decline.  The  Bond  which  the  Chiefs  sub- 


THE  EPOCH  OF  THE  CLANS.  219 

scribed  proceeded  on  the  narrative  or  confession  of 
"the  great  misery,  barbarity,  and  poverty  unto  which, 
for  the  present,  their  barren  country  was  subject." 
Nor  were  these  sweeping  words  used  without  ade- 
quate explanation  in  detail.  Religion  had  fallen 
into  universal  decay.  The  old  order  had  passed 
away,  and  no  new  order  had  been  established  in  its 
place.  The  clergy  had  been  starved  and  banished. 
The  Churches  had  been  allowed  to  fall  into  ruins. 
Christianity  had  become  little  more  than  a  memory 
and  a  name.  Marriage  itself  had  ceased  to  be 
an  institution  of  general  obligation,  and  had  largely 
been  replaced  among  the  people  by  an  old  Celtic 
barbarous  custom  called  "  Handfasting,"  which 
was  a  contract  of  union  for  some  short  term  of 
years  only.  It  is  difficult  to  conceive  a  more  ter- 
rible indictment  against  any  system  of  life  and 
government  than  that  which  was  admitted  and 
acknowledged  to  be  true  of  the  country  which  had 
been  so  long  under  the  sway  of  Celtic  Feudalism. 
Nor  are  the  promised  remedies  and  reforms  less 
eloquent  than  the  general  confession.  The  Statutes 
of  lona  numbered  nine  in  all — referring  to  so  many 
separate  measures  to  be  taken,  and  to  the  taking 
of  which  all  the  Chiefs  solemnly  bound  themselves 
by  an  oath  under  the  most  solemn  sanctions  of 
a  most  solemn  place.  Of  these  nine  Statutes  it  is 
a  memorable  fact  that  no  less  than  four  were  directly 
aimed  at  abuses  which  were  the  invariable  product 
of  the  unwritten  laws  and  usages  of  Celtic  Feudalism. 
These  abuses  indicate  precisely  the  same  conditions 


220  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

of  absolutism  on  the  part  of  the  Chiefs,  and  pre- 
cisely the  same  kind  of  sufferings  on  the  part  of 
their  people,  which  we  have  seen  Sir  John  Davies 
denouncing  in  Ireland  about  the  same  time,  and 
both  of  which  were  the  natural  and  necessary 
results  of  loose  and  traditional  customs  smothering 

O 

written  laws  and  definite  agreements. 

The  first  Statute  which  bears  upon  these  was 
one  for  the  establishment  of  Inns,  on  the  express 
ground  that  the  burden  of  supporting  all  strangers 
had  hitherto  been  thrown  upon  the  Tenants  and 
labourers  of  the  ground.  The  second  Regulation 
touching  the  same  subject,  struck  at  another  form 
of  the  same  abuse,  namely,  the  multitudinous 
retainers  and  personal  attendants  of  the  Chiefs,  the 
cost  of  whose  support  was  also  habitually  thrown 
on  the  same  helpless  classes  in  addition  to  their 
usual  rents.  These  retainers  were  in  future  to  be 
limited  in  number,  and  it  was  specially  provided 
that  each  Chief  should  support  his  Household  out 
of  his  own  regular  rents,  and  not  by  indefinite 
exactions  levied  from  his  Tenantry.  When  we 
look  into  the  rules  laid  down  under  this  Statute, 
which  indicate  the  number  of  personal  retainers 
which  was  thought  reasonable  for  the  station  of  the 
leading  Chiefs,  our  eyes  become  opened  to  the  pre- 
valent delusion  that  the  dues  paid  by  the  occupying 
class  to  the  Owners  were  light  and  easy  under  Celtic 
Feudalism.  The  habitual  entertainment  of  gentle- 
man-followers to  numbers  varying  from  ten  to  eight, 
or  from  six  to  thi^ee,  by  each  of  the  Chiefs  and 


THE  EPOCH  OF  THE  CLANS.  221 

Chieftains  of  the  impoverished  Hebrides,  indicates 
an  immense  drain  on  the  sources  of  such  a  country. 
When  we  remember  that  these  gentlemen-retainers 
were  men  who  lived  at  the  same  board  with  the  Chief 
—that  hardly  any  articles  of  foreign  produce,  except 
wine,  were  then  imported — that  they  did  no  work  of 
a  productive  kind — that  they  were  supported  in  addi- 
tion to  the  servants  necessary  for  work, — we  must 
come  to  the  conclusion  that  the  rents  paid  in  produce 
by  the  people  must  have  been  relatively  very  much 
greater  than  are  paid  in  modern  times.  There  are 
very  few  Landowners  now  except  some  of  the  very 
richest,  and  certainly  there  is  no  mere  Highland 
Landowner,  who  would  not  find  the  habitual  enter- 
tainment of  six  or  eight  gentlemen  at  his  table  all 
the  year  round,  an  intolerable,  or  perhaps  even  an 
exhausting  burden,  when  added  to  the  unavoidable 
cost  of  service.  We  may  well  conceive  then  what 
the  habitual  oppression  of  the  people  must  have 
been  under  the  native  usages  which  rendered  it 
habitual  to  throw  burdens  indefinitely  heavier  than 
this  upon  the  Tenants  in  addition  to  any  fixed 
or  stipulated  rents.  The  third  Statute  of  the 
same  class  applied  the  same  principle  to  all  who 
were  "  Sorners "  in  the  country,  that  is  to  say. 
persons  living  at  free  quarters  upon  the  poor 
inhabitants. 

The   Fourth   Statute  aiming  at    reform  is  per- 
haps the  most  remarkable  of  all,  because  it  touched 
one  of  the  most  purely  native  and  the  most  char 
acteristically  Celtic  habits  of  life  which  prevailed  in 


222  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

the  country,  and  which  in  itself  might  appear  to 
be  the  most  harmless,  as  it  certainly  was  one  of  the 
most  poetic  and  the  most  attractive.  This  was  the 
habitual  entertainment  of  travelling  Bards  who  by 
Harp  and  Song  handed  down  the  stories  and 
traditions  of  the  Clans.  But  it  was  precisely  in 
this  attractiveness  that  the  danger  lay.  The  bloody 
experience  of  many  centuries  had  shown,  and  the 
exhausted  condition  of  the  country  then  showed, 
that  the  very  root  of  the  evil  lay  in  the  deathless 
animosities  between  Clan  and  Clan,  and  the  cruel 
passions  which  were  developed  in  the  prosecution  of 
them.  It  was  the  very  business  of  the  Bards  to 
carry  these  on  from  generation  to  generation,  and 
by  all  the  incitements  of  voice  and  of  stringed 
instruments  to  keep  every  offence  from  being  for- 
gotten, and  every  deed  of  barbarous  revenge  from 
being  repented  of.  Sitting  in  the  hall  of  some 
strong  Keep,  built  upon  a  stormy  headland  or  a 
sheltered  Islet, — or  in  the  one  long  undivided  apart- 
ment which  occupied  the  whole  of  a  house  built  of 
turf  and  wattles, — the  Bards  kept  up  round  roaring 
fires,  and  in  the  midst  of  still  more  uproarious 
companies,  the  unquenchable  flames  of  hatred  and 
revenge.  Thus  a  barbarous  Past  was  kept  from 
ever  becoming  a  Past  at  all.  Time  was  not  allowed 
to  have  any  effect  in  softening  manners,  or  in 
bringing  about  the  oblivion  of  injuries.  So  real  and 
so  practical  was  this  tremendous  evil  that  we  read 
of  one  feud  between  two  Clans — the  same,  it  is 
believed,  that  fought  on  the  Inch  of  Perth' — whose 


THE  EPOCH  OF  THE  CLANS.  223 

feud  is  known  to  have  lasted  fully  300  years.1  Of 
all  the  causes  which  led  to  this  condition  of  things, 
and  kept  it  up,  the  Bards  were  the  incarnation.  It 
was,  therefore,  from  no  idle  Lowland  prejudice,  but 
from  the  true  and  instinctive  perception  of  the 
authorities  who  were  brought  face  to  face  with  the 
problem  how  to  redeem  the  Islands  and  Western 
Highlands  from  utter  barbarism,  that  they  called 
upon  the  Celtic  Chiefs  to  suppress  the  Bards,  and 
that  the  Bards  themselves  were  threatened  first 
with  the  stocks  and  then  with  banishment.2 

The  best  remedy,  however,  which  was  provided 
by  the  Statutes  of  lona,  was  that  which  provided  for 
a  re-establishment  of  a  free  communication  with  the 
more  civilised  portions  of  the  Kingdom  such  as 
might  bring  about  once  more  some  amalgamation  of 
the  two  races,  and  some  community  of  thought  and 
sentiment.  With  this  view  it  was  provided  that 
every  Highlander  who  possessed  as  much  as  sixty 
head  of  cattle  should  send  his  eldest  son  or  his 
eldest  daughter  to  school  in  the  Lowlands,  till  he 
or  she  had  learnt  to  speak,  read,  and  write  the 
English  language.  It  is  said  that  this  provision, 
as  much  as  any  other,  had  speedy  and  permanent 
effects — that  it  led  in  the  next  generation  to  that 
personal  loyalty  to  the  House  of  Stuart  which  many 
of  the  Islanders  displayed  in  the  following  century. 
Representing,  as  I  do,  a  Clan  and  family  who  were 
true  to  the  Stuarts  so  long  as  the  Stuarts  were  true 
to  the  Laws  and  Constitution  of  their  country,  but 

1  Gregory's  History,  p.  78.  2  Ibid.  p.  330-33. 


224  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

who  preferred  that  Law  and  Constitution  to  any  mere 
personal  affection,  I  can  only  in  imagination  admire 
the  opposite  preference  shown  by  the  Jacobite  Clans. 
But  at  least  their  conduct,  in  that  great  division  of 
opinion,  exhibited  an  unspeakable  elevation  of 
character  above  that  which  had  so  long  been  spent 
on  their  own  broils.  Those  who  are  faithful  to  a 
great  Cause  with  all  its  attachments  of  intellect  and 
heart,  must  ever  rank  higher  in  the  history  of 
civilisation  than  those  who  are  faithful  merely  to  a 
great  Family.  But  it  is  impossible  to  praise  too 
highly  the  unselfish  and  incorruptible  devotion  with 
which  so  many  of  the  Celtic  Clans,  and  the 
poorest  members  of  these,  resisted  the  bribes  and 
threats  of  a  powerful  government  equally  strong  to 
punish  or  reward,  in  their  protection  of  the  Hoyal 
fugitive  who  lived  so  long  in  the  cliffs  and  caves  of 
Skye.  There  was  not  only  genuine  poetry  in  it. 
but  genuine  virtue  too.  It  is  an  immortal  page  in 
an  otherwise  rude  and  melancholy  history,  and  has 
conferred  upon  the  Celtic  character  a  just  and 
imperishable  renown. 

We  have,  however,  a  signal  illustration  of  the 
elements  of  charm  and  of  attraction  which  that 
character  has  included,  and  of  the  somewhat  dis- 
torting effect  which  has  been  exerted  by  its  poetry 
and  romance,  when  we  look  at  the  popular  estimate 
which  has  been  formed  of  the  Clan  system  as  it 
existed  in  the  Celtic  Highlands  and  as  it  existed 
in  those  Border  Highlands  in  which  the  population 
was  predominantly  Scoto-Saxon.  It  seems  to  be  now 


THE  EPOCH  OF  THE  CLANS.  225 

almost  forgotten  that  neither  in  nature  nor  even  in 
name,  was  the  Clan  organisation  confined  to  the 
Celtic  Highlands.  We  have  the  best  possible 
evidence  on  this  subject — the  evidence  of  the 
language  and  of  the  action  of  contemporary  Par- 
liaments, embracing  representative  men  from  all 
corners  of  the  Kingdom  who  could  not  possibly  be 
mistaken  on  the  identity  of  the  social  phenomena 
with  which  they  were  called  to  deal  in  its  different 
Provinces.  Moreover  this  evidence  of  instinctive 
recognition  is  corroborated  and  confirmed  by  the 
still  higher  evidence  of  clear  intellectual  definitions. 
Those  Parliaments  had  before  them  tremendous  prac- 
tical evils,  exposing  Society  very  often  to  great  suffer- 
ing, and  to  the  continual  dread  and  anticipation  of  it. 
They  were  compelled  to  think  about,  and  to  define 
to  themselves  and  others  for  the  purposes  of  legis- 
lation, the  root  and  source  of  such  great  evils. 
Accordingly  they  arrived  at  consistent  and  clearly 
intelligible  results.  They  had  before  them  two 
great  sources  of  power  and  of  authority.  One  of 
these  was  the  power  of  the  Proprietor  of  land  in  the 
exercise  of  the  rights  of  Ownership.  The  other  of 
these  was  the  power  of  a  few  great  Families  in  the 
exercise  of  the  power  of  Chiefship.  The  powers  of 
Ownership  rested  upon  chartered  and  legal  authority, 
in  close  connection  with  systems  of  law  and  of  tradi- 
tion as  wide  spreading  as  the  civilisation  of  Europe 
both  in  the  ancient  and  in  the  modern  world.  The 
power  of  Chiefs  rested  on  unwritten  and  indefinite 
usages,  on  influences  essentially  local,  personal,  and 
VOL.  i.  p 


226  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

individual.  These  were  not  formal  differences. 
They  were  differences  in  the  nature  of  things.  The 
interest  of  a  Proprietor  of  land,  as  such,  lay  in  the 
improvement  of  the  soil,  the  increase  of  its  produce, 
in  the  peace  of  the  country,  in  the  growing  wealth  of 
its  population.  The  interests  of  a  Chief,  merely  as 
such,  were  generally  the  interests  of  a  political  and 
Military  Leader,  whose  ambitions,  passions,  and 
desires,  did  not  by  any  means  tend  to  be  in  harmony 
with  the  national  government  or  the  general 
interests  of  the  country. 

As  between  these  two  great  sources  of  influence 
and  of  power  there  could  be  no  doubt  in  the  Six- 
teenth Century  which  of  them  was  the  instrument 
to  be  relied  upon  in  the  cause  of  Law,  Order,  and 
Civilisation.  This  was  the  question  which,  under 
the  pressure  of  great  and  intolerable  disorders  in 
many  parts  of  the  Kingdom,  came  at  last  to  be 
specially  dealt  with,  first,  by  the  Parliament  of  1581, 
and,  next,  by  the  Parliament  of  1587. 

The  first  of  these  does  not  give  a  flattering 
description  of  the  confraternities  of  men  who  then 
were  known  under  the  name  of  Clans.  It  calls  them 
"Clans  of  thieves,"  and  says  they  were  "for  the 
most  part  copartners  of  wicked  men,  coupled  in 
fellowship  by  occasion  of  their  surnames,  or  near 
dwelling  together,  or  through  keeping  society  in 
theft,  or  reset  of  theft,  not  subject  to  the  ordinary 
Courts  of  Justice,  nor  to  any  Landlord  that  will 
make  them  amenable  to  the  laws,  but  commonly 
dwelling  upon  sundry  men's  lands  against  the  good- 


THE  EPOCH  OF  THE  CLANS.  227 

will  of  their  Landlords,  whereby  true  men  injured 
by  them  can  have  no  remedy  at  the  hands  of  their 
masters." 

The  Parliament  of  1587  dealt  with  this  con- 
dition of  things  much  more  carefully,  and  with 
an  amount  of  detail  which  is  of  the  highest  his- 
torical interest.  It  was  held  in  Edinburgh,  and 
was  attended  by  a  full  proportion  of  the  classes 
which  generally  attended  the  Great  Council  of 
the  nation  in  those  days.  In  particular,  there 
were  both  among  the  clerical  and  the  lay  members 
men  from  parts  of  the  Kingdom  who  lived  in,  or  in 
the  neighbourhood  both  of  the  Celtic  and  of  the 
Anglo-Saxon  Highlands.  The  Earls  of  Lennox,  of 
Mar  and  of  Huntly,  the  Abbots  of  Melros,  Scone, 
Inchaffray,  Paisley,  and  many  others,  the  representa- 
tives for  the  Burghs  of  Aberdeen,  Stirling,  Inverness, 
Dingwall,  Wigton,  Selkirk,  and  Dumfries,  must  have 
known  what  they  were  talking  about  when  they 
absolutely  identified  the  Clan  system  of  the  High- 
lands proper,  with  the  Clan  system  of  the  Border 
Hills  and  Vales.  This  they  did,  not  only  in  the 
general  title  of  the  statutes  they  passed,  or  in  any 
loose  cursory  application  of  the  same  words  to  things 
which  were  only  analogous,  but  not  in  principle  the 
same.  They  conjoined  together  the  Highlands  and 
the  Borders  in  these  titles  indeed,  but  also  in  the 
far  more  effective  way  of  defining  that  feature  of 
Clanship  in  which  its  essence  lay.  This  was  in  the 
power  of  Chiefship  as  distinguished  from  the  power 
of  Ownership.  It  was  the  Chiefs  as  such  who  re- 


SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

cruited,  entertained,  and  harboured  "broken  men." 
It  was  the  Chiefs  who  waged  war  against  each 
other,  and  overruled  and  overrode  the  legitimate 
influence  of  Proprietors  over  their  own  Tenants.  It 
was  to  Proprietors  that  the  Legislature  looked  for 
a  remedy  to  this  state  of  things.  It  was  to  their 
legal  and  authorised  powers  that  it  appealed  as  in- 
volving corresponding  duties  in  keeping  the  peace  of 
the  country.  They  had  a  right  to  turn  out  "  broken 
men  "  who  lived  upon  their  Estates.  They  had  a 
right  to  let  their  lands  on  any  condition  they  liked. 
They  were  not  to  allow  themselves,  if  they  could 
help  it,  to  be  reduced  to  the  condition  of  mere  rent- 
chargers  on  their  own  Estates — divorced  from  the 
powers  and  rights  which  they  held  as  Owners  of  the 
soil.  If,  indeed,  from  living  in  the  "far  Hielaiids," 
or  on  the  Borders,  they  were  helpless  in  the  matter ; 
if  they  lived  on  their  Estates,  and  yet  could  only 
get  their  "  mailes  and  rents,  and  no  other  service 
or  obedience,"  then  such  landlords  were  to  be  exempt 
from  penalty  for  consequences  which  they  could  not 
prevent.  But  as  soon  as  possible  they  were  to 
deliver  themselves  from  such  a  condition.1  It  was 
their  duty  not  to  let  their  farms,  or  other  holdings, 
to  men  who  were  not  loyal  subjects  of  the  Crown. 

This  language  was  addressed  equally  to  all 
Owners  of  land  over  all  the  Highlands,  Celtic  and 
non-Celtic.  The  tongue  spoken  in  particular  dis- 
tricts could  make  no  difference  in  these  rights  and 
powers  of  Ownership  as  known  to  the  law,  nor  could 

1  Art.  ParL  (Jacob,  vi.)  vol.  iii.  p.  462. 


THE  EPOCH  OF  THE  CLANS.  229 

it  make  any  difference  in  the  duties  they  imposed. 
Therefore,  all  over  the  Kingdom,  both  in  the  Borders 
and  in  the  Highlands,  the  Proprietors  of  land  were 
exhorted  and  enjoined  to  resist  to  the  utmost  the 
unlawful  powers  of  Chiefs  over  the  Tenants  and 
others  who  lived  upon  their  land,  and  they  were 
especially  enjoined  not  to  let  their  land  on  hire  to 
such  men  as  would  lend  themselves  to  such  leaders. 
But  in  order  to  make  these  enactments  more  defi- 
nite and  practical,  two  lists  or  "Rolls"  were  drawn 
up,  and  scheduled  in  the  Act ;  one  of  them  being  a 
"Roll  of  the  Clans  that  has  Captains,  Chiefs,  and 
Chieftains,  on  whom  they  depend  ofttime  against  the 
wills  of  their  Landlords,  as  well  on  the  Borders  as  the 
Highlands,  and  of  some  special  persons  of  Branches 
of  the  said  Clans."  The  other  list  was  a  "  Roll  of 
the  Landlords  and  Baillies  of  lands  dwelling  in  the 
Borders  and  the  Highlands  where  broken  men  have 
dwelt,  and  presently  dwell."  At  the  head  of  the 
first  of  these  rolls  we  find  some  of  the  most  famed 
names  of  families  of  the  Border  Counties  or  the 
non-Celtic  Highlands  —  such  as  the  Elliotts,  the 
Scots,  the  Armstrongs,  the  Johnstones,  the  Jardines, 
Maxwells  and  Carruthers.  These  are  bracketed  in 
the  same  list  with  the  Macdonalds,  the  Macleods, 
the  Mackintoshes,  the  Camerons,  and  all  the  best 
known  Chiefs  of  the  Clans  in  the  Western  Isles  and 
Highlands,  as  well  as  in  the  central  and  eastern 
districts  of  the  Celtic  area.  It  is  quite  evident  that 
at  that  time  the  system  of  men  aggregated  into 
Septs  and  Clans  under  a  common  name,  and  with  at 


230  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

least  a  flavour  and  a  memory  of  common  blood,  was 
so  identical  in.  the  two  great  divisions  of  the  King- 
dom that  no  distinction  could  be  drawn  either  in  its 
principle,  or  in  its  effects.  It  is  evident  also  that 
the  evil  and  danger  of  this  system  essentially  con- 
sisted in  the  military  and  predatory  character  which 
these  Septs  and  Clans  tended  to  assume — in  the 
perpetuation  of  feuds,  and  generally  in  the  en- 
couragement of  a  lawless  spirit,  and  the  practices 
of  a  lawless  life. 

Sir  Walter  Scott,  in  the  short  but  powerful 
sketch  of  the  history  of  the  Southern  Counties  dur- 
ing 300  years,  which  he  has  given  in  the  preface  to 
his  Minstrelsy  of  the  Scottish  Border,  has  entirely 
accepted  this  view  of  the  identity  of  the  Clan  sys- 
tem in  the  two  divisions  of  the  Kingdom.  Through- 
out the  pages  of  that  sketch,  he  speaks  of  the  great 
families  of  the  Border  as  the  Chiefs  and  heads  of 
Clans.  He  even  speaks  of  the  "Tribe;"  and  his 
narrative  affords  signal  examples  of  all  the  charac- 
teristic features  of  Celtic  Clanship.  The  broken 
remains  of  some  decimated  Sept  were  in  the  habit 
of  joining  and  merging  in  some  other  more  fortunate 
and  more  powerful  Clan.  Exactly  the  same  results 
to  the  nation  and  to  society  had  arisen  in  both 
areas.  In  the  Fifteenth  Century  the  great  House  of 
Douglas  played,  in  the  southern  part  of  the  Kingdom, 
towards  the  Scottish  Crown  and  Monarchy  a  part 
strictly  analogous  to  that  which,  during  the  previous 
Century,  had  been  played  in  the  Highlands  by  the 
Lords  of  the  Isles  and  the  Earls  of  Ross.  And  when 


THE  EPOCH  OF  THE  CLANS.  231 

that  great  House  was  broken  up,  its  place  was  taken 
by  a  crowd  of  Clans,  which  kept  up  against  each  other, 
and  often  against  the  Crown,  the  same  perpetual 
feuds,  and  the  same  frequent  rebellions.  The  only 
difference  between  the  Celtic  and  the  non-Celtic 
Clans  and  Septs  lay  in  the  geographical  situation  of 
their  respective  countries,  and  in  the  distinctions  of 
language.  Both  of  these  differences  tended  to  keep 
up  the  Clan  system  in  the  Highlands  long  after  it 
had  practically  disappeared  in  the  Lowland  coun- 
ties. The  Union  of  the  Crowns  under  James  vi.,  in 
1603,  put  an  end  to  the  isolated  position  of  the 
southern  Clans  as  Borderers.  As  Sir  Walter  Scott 
pithily  puts  it,  this  event  "  converted  the  extremity 
into  the  centre  of  his  Kingdom." l  Community  of 
language  had  been  already  established  for  centuries 
between  the  southern  Clans  and  their  neighbours  in 
the  Low  Country. 

The  Reformation  took  a  powerful  hold  over  the 
population  of  the  Borders ;  and  it  is  well  known 
that  a  few  years  later  they  furnished  the  most  un- 
compromising adherents  and  martyrs  of  the  Pres- 
byterian Covenant.  On  the  other  hand,  the  Celtic 
Clans  continued  as  isolated  and  inaccessible  as 
before,  and  their  language  and  habits  were  an  in- 
superable barrier  to  any  real  community  of  thought. 
The  Reformation  did  not,  until  a  much  later  date, 
make  much  progress  among  the  Celtic  population. 
They  had  no  religious  sympathy  whatever  with 
the  powerful  motives  and  incitements  which  kept 

1  Minstrelsy,  Pref.  p.  xlviii.  (ed.  1802). 


SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

up  among  the  Presbyterian  people  a  passionate 
devotion  to  constitutional  liberty,  and  to  a  system 
of  government  strictly  subordinate  to  law.  All 
this  is  intelligible  enough.  But  what  is  less  intel- 
ligible is  the  extent  to  which  ib  is  forgotten  that  the 
ultimate  decline  of  the  Clan  system  in  the  Highlands 
and  in  the  Borders  was  due  to  the  same  general 
causes  which  operated  in  both  cases  the  same  kind 
and  measure  of  improvement.  The  only  difference 
was  that  the  change  came  in  the  Highlands  more 
suddenly,  and  later  by  more  than  a  hundred  years. 
But  the  essence  of  that  change  was  the  same  in 
both  cases.  It  was  the  decline,  on  the  one  hand, 
of  usages  unwritten  and  unknown  to  the  law.  It 
was  the  emergence,  on  the  other  hand, — the  survival 
and  working — of  powers  and  influences  which  were 
imbedded  in  the  Legislation  of  many  centuries,  and 
had  been  from  time  immemorial  the  basis  of  all 
civilisation.  The  Chief,  as  such,  lost  a  power  which 
was  checked  by  no  responsibility,  and  was  only  by 
accident  connected  with  any  public  duty.  The 
Proprietor,  as  such,  became  free  to  exercise  powers 
which  were  recognised  by  law,  and  were,  in  the 
nature  of  things,  inseparably  bound  up  with  the 
progress  of  the  country  and  the  advance  of  agri- 
culture. 

Yet,  strange  to  say,  the  imaginations  of  men  in 
the  Highlands  continued,  down  to  our  own  time,  to 
think  of  the  Clan  as  having  a  legal  and  substantive 
existence  there,  although  it  had  for  two  centuries 
ceased  to  be  even  thought  of  in  the  Border  Counties, 


THE  EPOCH  OF  THE  CLANS.  233 

where  it  had  once  been  quite  as  powerful,  and  quite 
as  universally  established.  With  such  vividness 
was  this  imagination  entertained,  that  so  late  as 
the  year  1852  an  attempt  was  made  by  a  man  of 
the  name  of  Macgillivray  to  claim  certain  lands  from 
the  natural  heir,  on  the  ground  that  this  heir  did 
not  belong  to  the  "  Clan  Chattan,"  whilst  he,  the 
claimant,  did  belong  to  it.  Such  a  claim  showed 
a  wonderful  forgetfulness  of  the  methods  by  which 
Clans  had  been  maintained.  They  had  been  kept 
up  by  mere  enlistment — by  "  Bonds  of  Manrent  " 
entered  into  with  strangers — by  the  adoption  of  the 
children  of  slaughtered  foes, — by  the  absorption  of 
the  broken  remnants  of  other  Septs.  It  would 
have  been  a  return  to  barbarism,  indeed,  if  mythical 
"  Tribal  rights  "  had  been  suffered  to  disinherit  the 
nearest  blood-relations  of  the  last  Proprietor,  and  to 
establish  in  possession  the  descendant,  perhaps,  of 
some  "  broken  man "  of  a  hostile  Sept,  who  had 
changed  his  allegiance  and  his  name.  That  such  a 
claim  should  have  been  made  is  another  example, 
in  a  separate  line  of  action,  of  the  corrupting  effect 
of  sentimental  admiration  for  Celtic  Feudalism,  of 
which  we  have  already  seen  other  illustrations.  The 
claim  brought  up  before  the  Supreme  Court  in  Scot- 
land the  whole  question  whether  the  Clan  organisa- 
tion had  any  existence  which  could  be  recognised 
by  law.  The  decision  of  that  Court  is  one  of  high 
legal  and  historical  interest,  and  bears  upon  the  face 
of  it  its  justice  and  its  truth.  I  give  it  therefore  in 
full,  as  quoted  by  Mr.  Skene  : — 


234  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

1 

"  The  lapse  of  time  and  the  progress  of  civilisation, 
with  the  attendant  influences  of  settled  Govern- 
ment, regular  authority,  and  the  supremacy  of  law, 
have  entirely  obliterated  the  peculiar  features,  and 
destroyed  the  essential  qualities  and  character  of 
Scottish  Clanship,  but  whether  they  are  viewed  as 
they  once  were,  or  as  they  now  are,  a  Court  of  Law 
is  equally  precluded  from  recognising  clans  as  exist- 
ing institutions  or  societies  with  legal  status,  the 
membership  of  which  can  be  inquired  into  or 
acknowledged  for  ascertaining  the  character  of 
heirs  called  to  succession. 

"  The  inquiry  which  the  pursuer's  averments 
would  here  demand  must  be  attended  with  extreme 
practical  difficulties  ;  but  the  recognition  of  a  Clan 
as  an  institution  or  society  known  to  law,  so  that 
membership  thereof  shall  be  a  quality  of  heirship 
and  a  condition  of  succession,  is  open  to  serious 
objection  in  point  of  principle. 

"  In  an  earlier  age,  when  feudal  authority  and 
irresponsible  power  were  stronger  than  the  law,  and 
formidable  to  the  Crown,  Clans  and  Chiefs,  with 
military  character,  feudal  subordination  and  internal 
arbitrary  dominion,  were  allowed  to  sustain  a 
tolerated,  but  not  a  legally  recognised  or  sanctioned 
existence. 

"  In  more  recent  times  Clans  are  indeed 
mentioned,  or  recognised  as  existing,  in  several 
Acts  of  Parliament.  But  it  is  thought  that  they 
are  not  mentioned  or  recognised  as  institutions  or 
societies  having  legal  status,  legal  rights,  or  legal 


THE  EPOCH  OF  THE  CLANS.  235 

vocation  or  functions,  but  rather  as  associations 
of  a  lawless,  arbitrary,  turbulent,  and  dangerous 
character. 

"  But  nothing  now  remains  either  of  the  feudal 
power  and  independent  dominion  which  procured 
sufferance  in  one  age,  or  of  the  lawless  and  dangerous 
turbulence  which  required  suppression  in  another. 
When  all  military  character,  all  feudal  subordination, 
all  heritable  jurisdiction,  all  independent  authority 
of  Chiefs,  are  extracted  from  what  used  to  be  called 
a  Clan,  nothing  remains  of  its  essential  and  peculiar 
features.  Clans  are  no  longer  what  they  were. 
The  purposes  for  which  they  once  existed,  as 
tolerated  but  not  as  sanctioned  societies,  are  not 
now  lawful.  To  all  practical  purposes  they  cannot 
legally  act,  and  they  do  not  legally  exist.  The  law 
knows  them  not.  For  peaceful  pageantry,  social 
enjoyment,  and  family  traditions,  mention  may  still 
be  made  of  Clans  and  Chiefs  of  Clans  ;  but  the 
Highlands  of  Scotland,  no  longer  oppressed  by 
arbitrary  sway,  or  distracted  by  feudal  contentions, 
are  now  inhabited  by  loyal,  orderly,  and  peaceful 
subjects  of  the  Crown  of  Great  Britain  ;  and  Clans 
are  not  now  corporations  which  law  sustains,  nor 
societies  which  law  recognises  or  acknowledges." 

There  is  only  one  point  of  view  which  is  not  fully 
presented  in  this  clear  and  admirable  Judgment. 
There  is  probably  no  human  institution,  however 
liable  to  abuse,  or  however  greatly  it  may  have  been 
actually  abused,  which  has  not  also  some  original 
elements  of  good.  These  may  survive  and  revive 


236  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

even  in  the  processes  of  decay.  When  the  purely 
feudal  relations  of  Chieftain  and  of  Clan  were  not 
separated  from,  but,  on  the  contrary,  were  united 
with,  the  peaceful  and  industrial  relations  of  Pro- 
prietor and  Tenant,  and  when  the  life  and  pursuits 
of  Chiefs  were  no  longer  directed  by  political  ambi- 
tions or  by  inter  tribal  hatreds,  the  combined  in- 
fluences of  Chief  and  of  Landlord  were  obviously 
capable  of  being  converted  into  the  most  powerful 
agency  of  civilisation  and  of  progress.  Such,  accord- 
ingly, they  proved  to  be,  first  among  the  Lowland, 
and,  at  last,  also  among  the  Celtic  Clans.  Of  this 
we  shall  see  some  examples  in  the  next  Chapter. 
The  passage  between  these  two  conditions  of  Clan- 
ship is  sure  to  be  accompanied  by  incidents  of  diffi- 
culty and  discontent.  These  are  illustrated  by  a 
melancholy  example.  In  virtue  of  the  arrange- 
ment made  by  the  Statutes  of  lona  many  of  the 
young  Highland  Chiefs  came  to  be  educated  in  the 
leading  centres  of  learning,  both  in  Scotland,  in  Eng- 
land, and  on  the  Continent.  Thus  two  young  men 
of  the  Clanranald — Macdonalds  of  Keppoch,  one  of 
the  oldest  families  in  the  Highlands — returned  from 
the  Low  Country  in  1666,  full  of  zeal  for  the  im- 
provement of  their  estates.  Such  improvements 
never  fail  to  offend  many  whose  lives  have  been 
spent  in  pursuits,  and  in  ideas,  which  belong  to 
the  dying  past.  Such  men  have  neither  the  intel- 
ligence nor  the  education  which  enable  them  to 
understand  reforms.  They  misjudge  the  motives 
and  the  reasons  which  induce  men  of  superior  know- 


THE  EPOCH  OF  THE  CLANS.  237 

ledge  to  depart  from  ignorant  but  ancestral  usages. 
The  two  young  Macdonalds  seem  in  this  way  to 
have  fallen  victims  to  their  superior  culture,  and 
were  barbarously  murdered  by  some  of  their  own 
Clan.1  But  these  young  men  were  martyrs  in  a  cause 
which  was  soon  to  triumph.  About  twenty-two 
years  after  their  untimely  death,  their  own  fol- 
lowers fought  with  their  old  enemies,  the  Mack- 
intoshes, the  last  Battle  of  the  Clans.  This  was  in 
1688,  shortly  before  the  Ee volution  which  finally 
established  the  Reign  of  Constitutional  Law  in 
the  government  of  the  United  Kingdom.  After 
this  there  was  a  slow  but  steady  change ;  and 
although  a  great  number  of  the  Clans  chose  and 
fought  for  the  Cause  which  was  opposed  to  Progress, 
yet  they  fought  in  that  cause  nobly — with  a  per- 
sonal loyalty  and  a  chivalrous  devotion.  The  better 
elements  of  Clanship  were  thus  emerging  even  in 
those  who  did  not  choose  the  better  side.  The 
same  elements  emerged,  at  least  equally,  among 
those  other  Chiefs  and  Clans  who  fought  as  well,  as 
devotedly,  and  sometimes  with  as  much  self-sacrifice 
in  that  other  Cause  which  was  identified  with  the 
triumph  of  Settled  Law  over  Arbitrary  Power. 

1  Gregory,  p.  415. 


CHAPTER  V. 

THE  APPEAL  FROM  CHIEFS  TO  OWNERS. 

THE  solemn  appeal  made  by  the  Parliament  of  1578 
to  the  ordinary  powers  and  legal  rights  of  Ownership, 
as  the  best  and  only  remedy  for  the  terrible  evils 
which  had  arisen,  both  in  the  Highlands  and  on  the 
Borders,  from  a  traditional  and  lawless  Feudalism, 
was  an  appeal  in  strict  accordance  with  the  whole 
history  and  principle  of  progress  in  Scotland  since 
the  dawn  of  her  Civilisation. 

We  have  seen  that  from  times  dating  at  least 
400  years  before  this  Parliament,  the  right  of  Owners 
to  select  their  own  Tenants,  and  to  let  their  own 
lands  on  whatever  conditions  for  which  they  could 
get  acceptance,  had  been  so  completely  recognised 
as  a  matter  of  course,  that  the  "  passing  away  "  of 
one  set  of  Tenants,  and  the  coining  in  of  another 
set,  was  dealt  with  as  a  common  contingency,  and 
as  requiring  to  be  met  by  an  equitable  modification 
of  the  local  burdens  imposed  for  the  support  of  Mills. 
Celtic  Feudalism  itself  had  largely  taken  advantage 
of  those  rights  of  Ownership  by  planting  men  upon 
estates  who  could  be  counted  upon  as  absolutely  at 
the  disposal  of  Chiefs  in  any  enterprise.  And  now 
we  have  to  notice  another  appeal  to  the  same  legal 


THE  APPEAL  FROM  CHIEFS  TO  OWNERS.  239 

power  and  rights  made  by  a  previous  Parliament, 
and  for  a  more  permanent  purpose.  The  appeal  in 
the  Acts  of  1578  had  reference  to  the  maintenance  of 
law  and  order, — to  the  restraint  of  feuds  and  broils, 
to  the  cessation  of  plunder  and  ravage  committed 
against  the  peaceful  subjects  of  the  Crown  who 
lived  within  reach  of  the  Highlands  or  of  the 
Border  Clans.  These  were  indeed  the  first  and 
indispensable  conditions  of  all  internal  improvement 
in  the  districts  tenanted  by  the  Clans,  and  also  in 
all  the  districts  accessible  to  them.  Beyond  this, 
however,  the  Acts  of  1578  did  not  point  to  the 
advance  of  agriculture,  or  indicate  any  methods  by 
which  that  great  industry  might  be  established 
among  the  people.  But  this  had  been  done  before. 
It  had,  indeed,  been  a  continuous  work  going  on  for 
centuries.  The  foundations  of  it  had  been  laid  in  the 
encouragement  given  to  free  Covenants ;  and  more 
than  a  century  and  a  quarter  before  this  date  the 
Act  of  1449  had  made  all  Tenants  secure  in  the 
enjoyment  of  their  Leases.  But  in  like  manner,  and 
as  an  essential  part  of  the  system  of  free  Covenants, 
the  Owners  of  land  were  to  be  secured  also  in  the 
fulfilment  of  all  conditions  on  which  such  Leases  had 
been  given.  Founding  on  this  great  principle,  both 
of  law  and  of  equitable  custom,  another  Parliament, 
that  of  1454,  had  indicated  to  Proprietors  that  they 
could  bind  their  Tenants  by  covenants  of  Lease  to 
take  their  part  in  the  agricultural  improvement  of 
the  country.  The  particular  kind  of  improvement 
which  attracted  the  special  notice  of  that  Parlia- 


240  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

ment  is  not  a  matter  of  great  importance.  Scientific 
agriculture  was  then  unknown,  and  the  interferences 
of  legislation  with  agricultural  industry  were  not 
always  more  intelligent  than  its  interferences  with 
the  industry  of  the  Towns.  Generally,  indeed, 
they  were  founded  on  the  better  policy  of  leaving 
men  free  to  find  out  the  best  modes  of  promoting 
their  own  interests.  On  this  occasion,  however, 
for  an  immediate  purpose  of  great  importance, 
Parliament  did  point  out  one  of  the  best  and 
most  fruitful  means  by  which  the  Owners  of 
land  could  exert  their  powers  for  the  improvement 
of  the  country.  The  immediate  object  in  view  was 
the  progress  of  enclosures,  both  for  woods  and  the 
better  fencing  of  arable  land.  So  much  that  is 
valuable  in  principle  is  involved  in  this  statute,  and 
its  very  wording  is  so  intimately  connected  with 
the  working  of  chartered  Ownership  and  Jurisdic- 
tion, that  I  give  it  in  full  :— 

"  Anent  the  plantation  of  woods  and  hedges,  and  the 
sowing  of  broom,  the  Lords  think  it  speedful  that  the  King 
charge  all  his  freeholders,  spiritual  and  temporal,  that  in  the 
making  of  their  Whitsunday  sets  (lettings)  they  statute  and 
ordain  that  all  the  tenants  plant  woods  and  trees,  and  make 
hedges,  and  sow  broom,  up  to  the  faculty  of  their  malings  (the 
capacity  of  their  holdings),  in  places  convenient  therefor  under 
such  pain  and  unlaw  as  the  Baron  or  Lord  shall  modify."1 

This  is  rather  a  Minute  or  Memorandum  as  the 
basis  of  a  law,  than  a  direct  Statute.  But  the 
informal  legislation  of  those  days  includes  many 
such  admonitions  and  directions  issued  to  the  lieges, 

1  Act.  Parl.  (Jacob,  n.)  vol.  ii.  p.  51. 


THE  APPEAL  FKOM  CHIEFS  TO  OWNERS.  241 

and  historically  they  furnish  some  of  the  most  valu- 
able indications  of  the  public  policy  of  those  times. 
In  this  case  we  cannot  fail  to  observe  the  peculiar 
phraseology  which  is  employed  as  to  the  power  of 
Landowners  in  respect  to  the  enforcement  of  the  con- 
ditions on  which  they  might  choose  to  let  their  land. 
They  were  to  "  statute  and  ordain"  in  respect  to  that 
enforcement.  Whence  comes  this  expression,  which 
was  the  usual  phrase  adopted  to  express  the  enact- 
ing authority  of  Parliament  ?  The  answer  to  this 
question  brings  us  face  to  face  with  one  of  the  most 
important  of  all  the  Institutions  of  those  centuries— 
namely,  the  Courts  of  Heritable  Jurisdiction,  and 
the  combination  of  these  with  the  ordinary  powers 
and  rights  of  Landowners  over  the  disposal  of  their 
property.  We  are  accustomed  to  think  of  the 
Heritable  Jurisdictions  conferred  by  Charter  upon 
the  Owners  of  Baronial  estates,  and  also  upon  the 
Magistrates  of  Royal  Burghs,  as  Institutions  inde- 
fensible in  principle,  and  wholly  barbarous  in  effect. 
That  they  led  very  often  to  great  abuses  and 
oppressions  is  certain.  It  is  certain  also  that  they 
became  inconsistent  with  the  universal  prevalence  of 
the  authority  of  a  central  Government,  and  of  the 
equal  administration  of  justice  by  impartial  tribunals 
all  over  the  Kingdom.  But  it  may  well  be  doubted 
whether,  in  any  of  the  centuries  before  the  close  of 
our  Civil  Wars,  the  Courts  of  Baronial  Jurisdiction 
could  have  been  dispensed  with  over  a  large  portion 
of  the  country,  and  especially  in  the  Highlands. 
This  at  least  was  the  feeling  of  those  centuries,  and 

VOL.  I.  Q 


242  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

they  were  centuries  full  of  the  instincts  which  alone 
can  build  up  a  Nation. 

Perhaps  it  will  surprise  many  to  know  that  in 
the  few  cases  in  which  we  can  catch  a  glimpse  of  the 
ordinary  working  of  these  Institutions  the  truth 
of  this  feeling  is  very  much  confirmed.  My  own 
attention  was  first  called  to  this  question — one  of 
great  historical  interest — by  observing  the  stipula- 
tions which  were  universal  in  Leases  down  to  our 
own  times,  by  which  all  agricultural  Tenants  were 
bound  to  attend  "  the  Baron  Baillie  Courts  "  of  the 
Lordship  or  Barony  in  which  their  farms  lay.  Clearly 
those  Tenants  were  not  asked  to  appear  before  the 
Courts  as  litigants,  or  as  accused  persons,  nor  merely 
to  express  submission.  They  became  bound  to  attend 
for  some  practical  purpose,  and  it  is  quite  evident 
what  that  purpose  was.  It  was  for  the  purpose  of 
serving  as  jurymen  or  assessors  to  assist  in  the 
administration  of  justice,  or  as  members  of  a  Council 
for  the  general  regulation  of  rural  and  local  affairs. 
Accordingly,  in  the  few  cases  in  which  the  records 
of  these  Baronial  Courts  have  come  to  light  we  see 
that  the  system  of  Heritable  Jurisdictions,  which 
has  acquired  such  an  evil  name,  was  in  reality,  in  its 
best  days,  a  thoroughly  popular  institution — one  in 
which  the  Baron  or  the  Lord  exercised  his  powers 
and  jurisdiction  with  the  general  assent  of  those 
over  whom  he  held  them.  It  is  true,  indeed,  that 
the  Tenants,  and  others  who  attended,  could  do 
nothing  without  consent  and  co-operation  of  the 
Lord  ;  and  it  is  certainly  true  also  that  he  could  do 


THE  APPEAL  FROM  CHIEFS  TO  OWNERS.  243 

almost  all  he  liked  to  do  without  them.  But  it  is 
equally  evident  that  ordinarily  he  acted  with  them 
and  through  them, — so  that  by  means  of  these 
Courts  not  only  did  a  great  Baron  execute  in  the 
main  substantial  justice,  but  a  great  Landowner 
could  also  the  better  introduce  agricultural  improve- 
ments, and  enforce  new  ideas  and  new  practices 
upon  his  Tenants  by  securing  general  acquiescence 
in  their  obligation  and  in  their  value. 

All  this  comes  out  with  striking  clearness  in  the 
life  of  one  great  Highland  Chieftain,  and  in  the 
careful  records  which  he  has  left  behind  him.  We 
cannot  do  better  than  look  carefully  for  a  little  into 
the  evidence  to  be  found  in  both. 

Not  very  long  after  the  death  of  Robert  the 
Bruce,  the  ancient  Barony  of  Lochow,  which  he  had 
confirmed  by  a  new  Charter  in  the  hands  of  the  son 
of  his  old  companion  in  arms,  came  in  the  usual 
course  of  inheritance  into  the  possession  of  one  Sir 
Duncan.  He  had  two  sons,  the  elder  of  whom,  Sir 
Archibald,  became  the  immediate  progenitor  of  the 
first  Earl  of  Argyll.  To  his  younger  son,  Colin,  Sir 
Duncan  gave  that  part  of  his  Barony  and  territory 
which  consisted  of  the  lands  of  Glenurchy,  including 
the  adjacent  shores  of  Lochow  at  its  head  or  eastern 
end.  These  lands  have  a  remarkable  geographical 
position.  From  that  end  of  Lochow  a  very  short 
hollow  in  the  hills,  leads  up  along  a  rough  but  easy 
slope  to  a  low  Pass,  which  is  the  watershed  between 
the  western  and  eastern  coasts  of  Scotland.  From 
the  top  of  this  low  Pass,  the  same  great  gap  in  the 


244  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

surrounding  hills  opens  into  the  long  and  somewhat 
winding  glen  or  strath  which  in  its  upper  reaches  is 
called  Strath -Fillan,  then  becomes  occupied,  first,  by 
the  small  waters  of  Loch  Dochart,  next,  by  the 
larger  waters  of  Loch  Tay,  and  from  that  point  con- 
stitutes the  bed  of  the  river  Tay,  till  that  river 
emerges  on  the  Low  Country  north  of  Perth.  This 
long  stretch  of  glen,  strath,  and  valley  is  the  most 
remarkable  transverse  break  in  the  mountain  masses 
which  constitute  the  central  Highlands.  It  affords 

o 

an  easy  access  to  those  Highlands  from  the  Eastern 
and  Lowland  Counties,  and  there  is  reason  to  believe 
that  along  it  more  than  one  of  the  great  movements 
of  passage  and  of  invasion  have  found  their  way. 
It  must  have  been  by  this  route  that  King  Robert 
the  Bruce  passed  westward  to  attack  his  enemy  of 
John  of  Lome,  and  it  was  on  the  direct  continua- 
tion of  it  that  he  fought  the  battle  of  Ben  Cruachan 
in  1308.  It  is  to  a  part  of  this  long  line  of  depres- 
sion that  the  name  Breadalbane  properly  belongs, 
the  only  name  in  which  we  have  the  survival  of  the 
old  name  "  Alban "  by  which  the  whole  Scottish 
mainland  was  known  in  the  early  days  of  the  Scoto- 
Celtic  emigration  from  Ireland. 

From  the  moment  when  the  younger  branch  of 
the  Campbell  family  became  Lords  of  Glenurquhay, 
they  seem  to  have  directed  their  chief  attention  to 
the  extension  of  their  authority  and  possession  east- 
ward along  this  great  line  of  access  to  the  Highlands 
of  Perthshire.  In  the  course  of  a  few  generations 
they  had  acquired  the  whole  of  it  either  in 


THE  APPEAL  FROM  CHIEFS  TO  OWNERS.  245 

Superiority  or  in  Ownership — had  built  Castles  in 
Loch  Dochart,  at  Finlarig  near  the  western  end 
of  Loch  Tay,  and  lastly  at  Balloch,  near  the  eastern 
end  of  that  Lake,  and  subsequently  known  as 
Taymouth.  It  would  be  difficult  to  find  a  more 
typical  example  of  a  great  Highland  estate  and 
Barony.  With  the  exception  of  a  few  flats  along 
the  river  sides, — of  a  very  few  gentle  slopes  capable 
of  cultivation  at  either  end,  and  here  and  there 
about  the  middle, — almost  the  whole  area  consists 
of  very  steep  and  high  mountains,  with  a  few  lateral 
passes,  all  more  or  less  narrow  and  defensible,  open- 
ing southwards  towards  Loch  Lomond  and  Loch 
Earn,  and  northwards  towards  the  wilds  of  Rannoch 
and  Glenco.  Yet  into  this  country  gathered  from 
time  to  time  various  "  broken  men,"  and  "  broken 
Clans,"  who  came  to  live  under  the  protection  of 
the  Lords  of  Glenurchy  on  the  usual  terms  of  Celtic 
Feudalism,  gradually  passing  into  the  more  civilised 
relationship,  founded  on  Charters,  of  Landlord  and 
Tenant  under  written  Covenants.  In  this  great 
period  of  change  the  single  life  of  Duncan,  the  seventh 
Lord  of  Glenurchy,  spans  an  important  epoch  in  the 
history  of  Scotland.  Born  in  1 5  45 — only  thirty -two 
years  after  Flodden,  and  early  in  the  reign  of  Queen 
Mary — living  through  the  whole  of  her  reign,— 
through  the  whole  of  the  reign  of  James  vi.,both  as 
King  of  Scotland  and  as  King  of  England,  and 
surviving  through  the  first  five  years  of  the  reign 
of  Charles  L,  this  Baron  seems  to  have  been  one  of 
the  earliest  of  the  great  Landowners  of  the  High- 


246  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

lands  who  exerted  himself  in  the  rural  improve- 
ment of  his  country.  By  a  fortunate  accident  his 
papers,  and  the  papers  of  some  of  his  predecessors, 
have  been  preserved,  and  a  selection  of  them  pub- 
lished by  a  competent  and  careful  Editor.1  As  Sir 
Duncan  ruled  for  forty-eight  years,  from  1583  to 
1631,  these  papers  throw  a  flood  of  light  on  the 
economy  of  estate  management,  and  of  rural  con- 
ditions generally  during  the  Sixteenth  and  Seven- 
teenth Centuries. 

Here  we  find  a  full  explanation  of  the  Act  of 
1454,  when  it  exhorted  Landlords  to  "  statute  and 
ordain "  that  certain  things  should  be  done  by 
Tenants  as  conditions  of  their  Lease.  We  find  that 
the  Baronial  Courts  were  local  Councils  with  very 
extensive  authority  over  all  kinds  of  matters.  They 
voted  their  Regulations  in  the  set  form  of  Acts  of 

o 

Parliament — "  it  is  statute  and  ordained."  More- 
over, these  words  are  often  (though  not  always) 
followed  by  words  analogous  to  those  in  Acts  of 
Parliament  by  which  the  Sovereign  declared  that  he 
acted  with  the  advice  and  consent  of  the  other 
branches  of  the  Legislature.  So  in  the  Baronial 
"  Statutes "  it  is  often  narrated  that  they  were 
enacted  "  with  consent  and  advice  of  the  whole 
Commons  and  Tenants."  This  form  varies  some- 
times, for  an  intelligible  reason,  with  the  subject 
matter,  where  special  interests  were  affected.  Thus, 
in  one  case  where  the  statute  affected  Mills,  it 
narrates  that  it  had  been  passed  with  consent  of 

1  Black  Bool:  of  Taymouth,  edited  by  Cosmo  Innes. 


THE  APPEAL  FROM  CHIEFS  TO  OWNERS.  247 

the  "  whole  Tenants  and  Millers."  Some  of  the 
statutes  are  for  the  enforcement  of  old  Parliamentary 
enactments.  Some  are  for  the  better  regulation 
of  morals,  as  where  women  are  prohibited  from 
going  to  drink  without  their  husbands  in  public 
brew-houses.  But  the  great  majority  of  the  regu- 
lations concern  what  may  be  strictly  called  estate 
management — the  obligations  laid  upon  Tenants  to 
conform  to  certain  rules  necessary  for  their  own 
welfare,  the  welfare  of  their  neighbours,  the  com- 
fort of  the  Cottars  or  Subtenants  who  laboured 
the  ground,  and  the  general  improvement  of  the 
country.  Some  important  facts  come  out  very  clearly 
in  these  and  other  relative  documents.  In  the 
first  place  it  is  evident  that  all  the  poorer  Tenants 
held  their  farms  or  "  rooms "  on  the  Steelbow 
tenure,  under  which  the  Landlord  supplied  not  only 
the  land  but  the  stock  and  the  seed  corn.1  It  is 
needless  to  point  out  that  quite  irrespective  of  the 
powers  and  rights  attaching,  over  the  whole  of  Scot- 
land, to  the  undivided  Ownership  recognised  and 
conveyed  both  by  Charter  and  by  the  immemorial 
usages  which  we  have  traced,  this  position  of  the 
Owner  of  the  land  being  also  the  owner  of  the  stock, 
and  the  lender  of  the  capital  required  for  seed,  etc., 
by  Tenants,  was  a  position  which  must  have  rendered 
the  exercise  of  his  equitable  as  well  as  legal  powers 
of  admitting  and  removing  Tenants,  a  matter  of 
universal  recognition.  Accordingly  among  the 
Statutes  of  the  Baronial  Courts  of  Glenurchy,  and 

1  Black  Book  of  Tay mouth,  Pref.  p.  xxiv. 


248  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

in  other  documents  of  the  same  series,  we  find  that 
the  outgoing  and  incoming  of  Tenants  was  as  much 
contemplated  and  provided  for  as  it  had  been  332 
years  before  in  the  legislation  of  William  the  Lion. 
Thus  in  1621,  "  it  is  statute  and  ordained  that  every 
Tenant  and  Cottar  shall  leave  their  Dwelling  Houses, 
at  their  removing  therefrom,  as  sufficient  in  all  re- 
spects as  they  entered  thereto — every  person  failing 
herein  under  the  penalty  of  ten  pounds  "  l  (Scots). 
So,  again  in  1624  there  is  a  careful  statute  regulating 
according  to  a  just  valuation  the  sums  which  might 
be  due  by  incoming  and  outgoing  Tenants  for  houses 
and  head-dikes  respectively.2  One  example  is  given 
of  the  forms  pursued  at  an  actual  removal  in  1596. 
The  outgoing  Tenant  was  removed  by  the  authority 
and  in  the  presence  of  a  regular  Officer  of  the  Sheriff- 
dom  of  Perth — the  household  gear  was  taken  out, 
and  the  Cattle,  Sheep,  Goats,  and  Horses  were  led 
beyond  the  march  of  the  farm,  whilst  the  incoming 
Tenant  was  inducted  into  his  new  possession  with 
the  like  formalities.3  There  are  a  few  indications 
that  occasionally  the  removal  of  Tenants  was  unlaw- 
fully resisted  ;  but  these  indications  are  so  rare  that 
they  are  classed  writh  other  acts  of  violence,  against 
which  men  protected  each  other  in  their  "Bonds  of 
Manrent,"  just  as  they  engaged  to  protect  each 
other  against  the  ravages  of  hostile  Clans.  Indeed, 
the  common  and  usual  danger  against  which  these 
peculiar  personal  and  family  alliances  were  directed 
was  not  the  danger  of  Tenants  resisting  lawful 

1  Black  Book  of  Taymoutli,  p.  353.  "  Ibid.  p.  365.          3  Ibid.  p.  418. 


THE  APPEAL  FKOM  CHIEFS  TO  OWNERS.  249 

removals,  but  the  danger  of  Tenants  suffering  un- 
lawful violence  from  others  than  their  Landlord. 
In  one  case  among  the  published  documents  of  this 
kind  in  the  Book  of  Taymouth  we  find  that  the 
Lord  of  Glenurchy  engaged  in  a  "  Bond  of  Manrent," 
to  defend  his  friends  of  the  name  of  Shaw,  having 
lands  in  Menteith,  against  all  kinds  of  injury  from 
lawless  men,  and  only  as  one  item  among  many 
others,  "to  assist  them  in  all  actions  of  removing 
against  their  Tenants."1 

On  the  other  hand,  the  common,  usual,  and 
indeed  permanent  condition  of  things  in  those 
centuries,  was  the  inevitable  dependence  of  the 
Tenants  upon  that  protection  from  ravages  and 
violence  which  lay  in  the  fear  inspired  by  great 
Baronial  Landlords  in  the  minds  of  predatory 
neighbours,  and  by  the  power  which  lay  in  their 
hands  alone  of  recompensing  their  Tenants  and 
Retainers  by  the  grant  of  new  holdings  of  land 
where  the  ravages  of  such  men  had  not  been  fore- 
seen and  prevented.  Of  this  contingency  and  of 
the  obligation  which  it  imposed  we  have  a  pleasant 
specimen  in  a  letter  from  Colin,  Lord  of  Glenurchy, 
father  of  Sir  Duncan,  in  1570,  to  one  of  his  fol- 
lowers who  had  suffered  from  the  great  Robber 
Clan  of  those  days — the  Clan  Gregour.  The  letter 
runs  thus : — "  Gregor  M'Ane,  I  commend  me 
heartily  to  you.  MacCallum  Dow  has  shown  me 
how  the  Clan  Gregour  has  taken  up  your  geir  and 
your  poor  Tenants'  geir,  the  which  I  pray  you  to 

1  Black  Book  of  Taymouth,  p.  238. 


250  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

take  no  thought  of,  for  albeit  I  have  no  cattle  to 
recompense  you  instantly,  I  shall,  God  willing,  make 
you  and  yours  sure  of  rooms  (farms  or  crofts)  that 
shall  make  you  more  profit  than  the  geir  that 
ye  have  lost  at  this  time,  you  being  a  true  faithful 
servant  unto  me.  And  if  the  poor  men  that  want 
geir,  dwelling  under  you,  be  true  to  you,  take  them 
into  the  place  upon  my  expense,  and  give  to  their 
wives  and  bairns  some  of  my  Victual  to  sustain 
them  as  you  think  expedient.  I  pray  you  have  the 
place  well  provided  with  such  furnishing  as  you  may 
get,  and  spare  neither  my  geir  nor  yet  your  own, 
for,  God  leaving  us  our  health,  we  will  get  geir 
enough  ;  .  .  .  for  albeit  the  geir  be  away  and  the 
ground  wasted,  I  keeping  that  old  House,  and 
Holding  (with)  the  rigs  (ridges)  whole,  as  God 
willing  I  shall,  you  being  a  faithful  servant  to  me, 
my  bairns  and  yours  shall  live  honorable  in  it, 
God  willing,  when  the  plague  of  God  will  lie  upon 
them  and  their  posterity  out  of  memory  that  molest 
me  and  you  at  this  present." 

Returning  to  the  enactments  of  the  Baronial 
Courts  of  Glenurchy  in  the  days  of  Duncan  the 
seventh  Lord,  we  find  that  the  great  powers 
which  the  conditions  of  Society,  as  well  as  mere 
law,  placed  of  necessity  in  the  hands  of  such  Barons, 
were  now  setting  steadily  in  the  direction  of  civili- 
sation and  improvement.  It  was  ordered  that  every 
Householder  should  provide  himself  with  a  Kitchen 
Garden,  such  as  the  scanty  knowledge  of  those  days 

1  Black  Book  of  Taymouth,  pp.  429-30. 


THE  APPEAL  FROM  CHIEFS  TO  OWNERS.          251 

could  understand.  They  were  "kailyards,"  to  be 
well  fenced  from  beasts,  and  to  be  stocked  with 
Red  Kail,  and  White  Kail,  and  Onions.  Every 
Tenant  was  to  see  that  his  Cottars,  or  Sub-tenants, 
were  to  be  similarly  furnished.  This  seems  rude 
and  simple  enough.  Yet,  strange  to  say,  there  are 
thousands  of  Crofters  and  Cottars  in  the  Highlands 
even  at  the  present  day,  who  have  never  provided 
themselves  with  even  such  kail-yards  as  this — far 
less  the  comforts  of  the  newer  vegetables,  which  are 
so  easily  grown,  and  are  so  great  an  addition  to  the 
comforts  of  a  family.  Similar  regulations  were  laid 
down  for  an  enclosed  and  protected  place  for  peats 
for  the  Cottars.  Careful  and  elaborate  rules  were 
laid  down  for  the  protection  of  existing  woods,  and 
for  the  systematic  planting  of  a  few  trees,  Oak,  Ash, 
and  Sycamore,  on  every  farm,  according  to  its  size, 
from  nurseries  which  were  to  be  established  in  the 
kail-yards.  The  plants  were  to  be  furnished  by  the 
Lord  at  a  fixed  and  very  low  rate.  These  seem  to 
have  been  made  conditions  of  Leases,  and  the 
statutes  of  the  Baronial  Courts  were  directed  to  the 
execution  and  enforcement  of  them  by  the  general 
concurrence  of  the  "  haill  Tenants  and  Commons." 
Similar  regulations  as  to  manure  in  the  formation 
of  Dungsteads  show  a  care  on  this  head  much  in 
advance  of  the  time  and  of  the  country,  whilst 
another  rule  against  ploughed  and  manured  land 
too  near  the  banks  of  rivers,  is  evidently  aimed 
against  the  pollution  of  waters,  and  the  injury  of 
Fish. 


252  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

But  the  question  naturally  arises,  what  kind  of 
agriculture  could  possibly  be  practised  in  such  a 
country  ?  By  far  the  largest  part  of  it  consisted  in 
steep  mountain-sides  leading  up  to  enormous  moors, 
and  very  often  leading  not  even  to  these,  but  to 
sharp  ridges,  which  fall  down  as  steeply  again  into 
some  narrow  glen  on  the  other  side.  Artificial 
Drainage  was  unknown.  The  bottoms  of  the  glens 
and  of  the  wider  straths  were  often  swampy  or 
occupied  by  bogs.  Thus  the  only  area  at  all  capable 
of  cultivation  consisted  of  the  knolls  and  the  gentler 
slopes  which  lay  between  the  flats  of  the  bottom 
and  the  line  above  which  the  hills  were  too  steep 
for  the  plough.  The  universal  custom  all  over  the 
Highlands  was  to  draw  a  "  head-dike  "  somewhere 
along  this  line,  and  to  cultivate  such  ground  as  could 
be  made  available  below  it.  Potatoes  were  then 
unknown.  Turnips  were  unknown.  There  was  no 
green  crop.  Wheat  was  unsuited  both  to  soil  and 
climate.  There  was,  and  there  could  be,  no  rota- 
tion. The  only  rest  for  the  land  was  bare  fallow, 
and  dense  crops  of  weed.  The  only  crops  which 
were  raised,  therefore,  were  some  varieties  of  Oat, 
and  Bear — an  inferior  kind  of  Barley.  From  these 
bread  was  made,  and  beer  was  brewed.  The  main 
produce  of  the  country  was  Cattle,  with  some 
Goats,  and  a  few  Sheep.  All  of  these  pastured 
during  the  winter  upon  what  they  could  pick  up 
from  the  last  stubbles,  and  from  such  coarse  herbage 
as  endured  the  season.  No  care  seems  to  have 
been  bestowed  on  making  or  saving  hay.  This 


THE  APPEAL  FROM  CHIEFS  TO  OWNERS.  253 

indispensable  article  is  not  even  named.  It  seems 
to  have  been  unknown.  The  consequence  was 
that  the  Cattle  were  of  the  most  wretched  descrip- 
tion. When  spring  came,  and  it  was  necessary 
to  sow  the  arable  land,  the  Cattle  and  the  few 
Sheep  were  turned  out  beyond  the  "  head-dike  "^ 
to  graze  upon  the  lower  slopes,  on  which  the 
wild  grasses  were  beginning  to  appear.  There  they 
gradually  picked  up  flesh  as  the  season  advanced. 
But  Cattle,  even  the  smallest  and  nimblest,  are 
comparatively  heavy  animals,  and  there  were  thou- 
sands of  acres  on  every  mountain- side  which  were 
too  steep  for  them  to  climb,  whilst  beyond  these 
again  there  were  miles  of  moor  to  which  they  could 
not  go,  and  of  green  faces  almost  precipitous  which 
every  summer  covered  with  a  luxurious  vegetation. 
What  became  of  these  great  surfaces  of  country  in 
those  centuries  ?  The  answer  is,  that  to  an  enormous 
extent  they  were  absolutely  lost,  except  for  the  use 
of  Deer,  respecting  the  care  and  preservation  of 
which,  as  a  valuable  supply  of  food,  there  were 
careful  "  Statutes"  made  by  the  Baronial  Courts. 
This  is  a  subject  on  which  there  is  the  profoundest 
ignorance  in  the  popular  writings  and  impressions 
of  the  present  day.  The  mountain  areas  are  sup- 
posed to  have  been  pastured  by  the  Cattle  of  the 
Tenants  and  Sub-tenants.  The  fact  is,  that  they 
were,  for  the  most  part,  not  pastured  by  domestic 
animals  at  all.  And  the  only  exception  to  this  is 
an  exception  of  great  interest  in  the  economy  and 
in  the  rural  life  of  the  Highlands,  which  like  many 


254  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

other  exceptions  is  a  signal  proof  and  illustration  of 
the  general  rule. 

Every  one  who  has  walked  much  among  the 
Highland  mountains  must  have  come  with  surprise, 
every  here  and  there,  upon  curious  marks  of  deserted 
habitations,  in  very  secluded  and  distant  spots. 
There  are  no  such  retentive  memories  as  the  grassy 
swards  of  mother  Earth.  They  keep  sacred  for 
generations — sometimes  even  for  ages — the  marks  of 
human  life  both  in  its  joys  and  in  its  sorrows,  in  its 
business  and  in  its  amusements.  Nowhere  are  the 
graves  of  men  so  well  remembered  as  in  swellings  of 
the  turf.  Nor  does  it  forget  their  pastimes.  Look- 
ing down  from  the  Terrace  of  Stirling  Castle  upon  a 
field  below  which  was  grazed  by  cows,  I  was  struck 
and  surprised,  many  years  ago,  to  see  in  the  faithful 
grass  the  almost  ghostly  markings  of  a  French 
"Parterre"  which  was  once  the  Flower  Garden  of 
poor  Mary  Queen  of  Scots.  And  so  almost  any- 
where among  the  hills  we  may  find  ourselves  among 
little  rings  of  mouldered  wall — or  of  turfy  ridges, 
sometimes  circular,  sometimes  oblong,  always  very 
small,  and  generally  placed  in  groups — suggesting 
rather  the  huts  of  a  temporary  encampment  than 
any  permanent  buildings.  They  are  always  above 
the  steep  sides  of  glens,  and  they  are  never  on  the 
stony  shoulders  of  peaks,  or  upon  the  summits. 
Sometimes  they  are  among  sudden  knolls  where  the 
ground  is  dry,  and  where  little  tracts  of  soft  green 
grass  are  invaded  by  tufts  of  heath,  and  look  as  if 
they  would  soon  be  covered  by  it  altogether.  Some- 


THE  APPEAL  FROM  CHIEFS  TO  OWNERS.          255 

times  they  are  in  natural  hollows  through  which  a 
''burn"  flows,  where  the  Dipper  flits  and  dives,  and 
where  the  Heron  watches  by  the  side  of  little  pools. 
Sometimes  they  are  on  the  top  of  sudden  braes  rising 
over  a  Moor  Loch  rich  in  Water  Lilies,  and  lively 
with  surface  rings  and  dimples,  which  show  it  to 
be  populous  with  Trout.  But  everywhere  and 
always,  if  we  look  around,  we  can  see  that  those 
who  came  there,  to  live  or  visit  for  a  time,  had  an 
eye  to  the  best  pasture,  the  best  shelter,  and  access 
to  a  fresh  spring  or  to  some  running  water.  These 
are  the  summer  "Shealings"1  so  famous  in  Highland 
history,  and  the  poetry  of  which  makes  men  as  mad 
now,  as  it  made  a  primitive  population  happy,  two 
hundred  years  ago.  That  population  went  to  these 
distant  and  lonely  spots  for  the  one  sufficient  reason 
that  their  Cattle  would  not  go  to  them  unless  they 
were  taken  there,  and  unless  they  were  herded  by 
the  men  and  women  and  children  during  a  few 
weeks  in  the  middle  of  summer.  Between  these 
spots  and  the  glens  in  which  the  people  habitu- 
ally lived,  there  lay  perhaps  miles  of  ascent  almost 
precipitous,  or  of  bogs  which  could  only  be  crossed 
by  careful  paths,  or  of  rocky  ground  on  which  the 
grassy  bits  were  too  few  and  scanty  for  the  grazing 
of  Cattle.  It  was  not  then  even  known  that  Sheep 
could  be  left  to  graze  by  themselves  among  the 
Highland  mountains.  The  breed  was  a  poor  one 
with  thin  hairy  wool,  and  considered  so  delicate 

1  This  word,  like  many  others,  is  variously  spelt  in  the  old  documents 
—  the  earliest  form  being  apparently  "sheilliugs" — but  the  later  form  is 
that  adopted  in  the  text. 


256  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

that  they  were  habitually  folded  even  at  night. 
Indeed,  this  was  an  absolute  necessity,  for  the 
mountains  were  haunted  by  Wolves,  and  among 
the  Statutes  of  the  Baronial  Court  of  Glenurchy 
there  is  one  expressly  enjoining  the  regular  manu- 
facture of  weapons  for  the  destruction  of  this 
savage  animal.  Their  ravages  must  have  been  for- 
midable indeed  when  at  a  date  so  late  as  1622  we  find 
that  a  case  came  before  the  Baronial  Court  respect- 
ing three  Cows  "  whilk  were  slain  by  the  Wolf."1 

Under  such  a  combination  of  circumstances  the 
only  way  of  turning  to  any  human  use,  even  the 
most  favoured  bits  of  the  upland  pastures,  was  for 
the  whole  population  of  the  Villages  or  Townships 
to  turn  out  of  their  homes,  with  all  their  stock,  at  a 
certain  season  of  the  year,  and  migrate  to  some  spot 
where  pasture  could  be  found  sufficiently  good,  and 
sufficiently  continuous  to  support  for  a  time  all  the 
Cattle  and  other  stock  belonging  to  them.  It  was 
always,  no  doubt,  a  delightful  time.  From  the 
smoky  habitations  deep  in  the  hollows,  where  often 
the  sun  shone  for  a  few  hours  only  out  of  the 
twenty-four,  it  must  have  been  a  pleasant  and  a 
wholesome  change  to  live  almost  wholly  in  the 
open  air,  amongst  the  fragrant  heather,  and  with 
the  splendid  after- glows  of  the  short  midsum- 
mer nights  setting  off  all  the  hills  around  in  the 
superbest  colouring.  It  did  not  require  the  conscious 
eye  of  a  landscape  painter  to  enable  even  a  very 
primitive  people  to  enjoy  thoroughly  such  a  change 

1  Black  Book  of  Taymouth,  p.  374. 


THE  APPEAL  FROM  CHIEFS  TO  OWNERS.  257 

as  this  in  the  routine  of  life.  Even  the  lower 
animals  often  exhibit  that  unconscious  exhilara- 
tion of  spirits  which  comes  from  the  influences  of 
Nature.  Accordingly  the  "  Summer  Shealings " 
are  the  theme  of  much  natural  sentiment,  and 
the  description  of  them  given  by  Mrs.  Grant 
of  Laggan  in  her  once  famous  Letters  from  the 
^Mountains,  is  referred  to  by  gushing  Ministers 
in  the  House  of  Commons,  as  if  they  repre- 
sented a  condition  of  things  which  it  is  possible 
or  desirable  to  restore.  They  might  as  well  go 
back  to  the  description  given  by  the  same  Mrs. 
Grant  of  life  in  a  very  different  country  and 
in  a  very  different  kind  of  wilderness.  In  my 
own  boyhood  I  recollect  having  seen  that  vener- 
able woman.  Yet  her  girlhood  had  been  spent 
at  Albany,  in  the  State  of  New  York,  at  a  time 
when  she  heard  the  talk  of  men  just  escaped  from 
the  savage  and  fatal  fight  of  Ticonderoga,  and  when 
the  path  from  the  waters  of  the  Hudson  to  the 
waters  of  Ontario  lay  through  primeval  forests, 
occupied  only  by  a  chain  of  posts  at  distant  intervals, 
and  dangerous  from  "  the  tomahawk  of  the  Indian, 
and  the  scalping  knife  of  the  savage."  Her  de- 
lightful account  of  that  journey1  with  her  father, 
—the  boating  by  day,  the  night  encampments,  the 
Mohawk  villages  and  King, — is  a  still  more  striking- 
picture  of  wild  life  than  her  account  of  the  summer 
Shealings  in  the  Highlands. 

1  Memoirs  of  an   American   Lady,   chap,   xliv.,   by  J.  G.   Wilson. 
Albany,  1876. 

VOL.  I.  R 


258  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

Both  of  these  scenes  belong  to  an  age  which, 
although  so  recent,  has  for  ever  passed  away,  and 
this  not  because  of  the  decline  of  anything,  but 
on  account  of  the  advance  of  everything.  In 
nothing  has  there  been  a  greater  advance  than  in 
that  branch  of  knowledge  which,  more  than  any 
other,  has  lain  at  the  root  of  all  civilisation — the 
knowledge  how  best  to  use  and  manage  those 
domestic  animals  which  were  among  the  very  earliest 
and  most  blessed  possessions  of  mankind.  The 
advance  in  this  knowledge,  which  has  reduced  the 
summer  Shearings  to  rings  of  turf,  has  been  nothing 
less  than  one  which  has  brought  some  nine-tenths  of 
the  Highland  mountains  for  the  first  time  under 
effective  contribution  to  human  use.  The  dense 
forests  of  the  upper  Hudson  and  Mohawk,  through 
which  Mrs.  Grant  travelled  when  a  child,  were  not 
more  useless  to  the  American  Colonies  than  the  vast 
vacant  pastures  of  the  Highlands  were  useless  to 
Scotland,  when  nothing  but  little  bits  of  them  were 
grazed  during  the  few  picnic  weeks  of  midsummer. 
No  one  who  has  ever  looked  with  an  eye,  however 
careless,  at  the  mountains  of  Glenurchy  and 
Breadalbane,  could  fail  to  see  what  a  mere  fraction 
of  the  ground  could  ever  be  used  for  Shealings.  The 
steep  acclivities  of  such  hills  as  Ben  Cruachan,  Ben 
Doran,  and  Ben  More  are  altogether  inaccessible  to 
Cattle.  And  even  on  the  lower  mountains  with 
moory  slopes,  which  were  available  for  summer  huts, 
we  have  only  to  consider  how  short  the  time  was 
during  which  these  were  occupied,  in  order  to 


THE  APPEAL  FROM  CHIEFS  TO  OWNERS.          259 

estimate  this  tremendous  waste.  On  this  point  we 
have  precise  information  from  the  Baronial  Courts  of 
Glenurchy.  It  was  an  essential  part  of  the  system 
that  no  Cattle  or  other  stock  should  be  left  at  home. 
If  any  beasts  of  any  kind  were  to  remain  behind, 
they  would  trespass  on  the  cultivated  land,  and 
destroy  the  crops.  Every  man  therefore  in  the 
Township  must  do  as  his  neighbour  did.  Although 
the  live  stock  was  always  the  personal  property  of 
each  Tenant,  the  management  could  not  be  individual 
because  of  the  promiscuous  grazing.  Rigid  rules 
therefore  had  to  be  laid  down  as  to  the  moving  to, 
and  the  moving  from,  the  Shealings.  From  these 
rules  we  learn  that  in  the  central  Highlands  the 
migration  of  the  people  with  all  their  Cattle  to  the 
hills  was  never  to  take  place  earlier  than  the  8th  of 
June,  and  the  return  from  them  never  later  than 
the  15th  of  July.1  That  is  to  say,  the  whole  time 
during  which  even  a  few  bits  of  these  great  moun- 
tain surfaces  were  to  be  used  for  grazing,  did  not 
cover  more  than  six  weeks  out  of  the  whole  year. 

It  is  clear  therefore  that  during  all  the  rest  of 
all  the  seasons,  the  whole  of  these  mountain  pas- 
tures, even  the  choicest  bits  of  them,  were  left  to 
the  Deer  and  to  the  Wolf,  to  the  Moor-fowl  and  to 
the  Fox.  Those  only  who  have  trod  the  moors  and 
hills  of  the  Highlands  during  the  later  summer  and 
autumnal  months,  and  have  observed  how  rich  they 
are  in  grasses,  in  addition  to  the  heather,  which  in 
itself  is  highly  nutritious,  can  fully  estimate  the 

1  Black  Book  of  Taymouth,  p.  364. 


260  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

wealth  and  the  boimteousness  of  nature  which  was 
then  wholly  sacrificed  to  traditional  and  untutored 
ignorance.  Even  if  the  little  bits  of  moorland, 
which  were  fit  for  Shealings,  had  been  occupied  all 
the  year  round,  instead  of  for  only  six  weeks,  a  mere 
fraction  of  the  whole  area  of  the  Highland  moun- 
tains would  have  been  made  available.  There  are 
hundreds  of  thousands  of  acres  on  every  mountain 
group  so  full  of  sudden  steeps,  and  little  precipices 
of  rock,  that  no  breed  of  Cattle,  however  small  and 
worthless,  would  ever  attempt  to  approach  them, 
even  if  they  were  herded  in  the  neighbourhood. 
Yet  these  places  are  nevertheless  very  often  full  of 
ledges  and  crannies,  of  steep  faces,  and  even  little 
flats,  of  the  richest  vegetation — every  inch  of  them  a 
perfect  garden  of  wild  grasses  and  wild  flowers  ready 
to  be  converted  by  the  Ruminants  into  human  food 
and  clothing.  All  these  immense  extents  of  surface 
were  inaccessible  from  the  Shealings. 

Nor  must  we  omit  another  immense  item  in  our 
account.  In  estimating  the  enormous  difference  be- 
tween the  productiveness  of  the  Highlands  as  they 
were  in  the  centuries  of  which  we  have  been  speaking, 
and  in  modern  times,  we  must  take  account  not  only 
of  the  immense  extent  of  area  redeemed  since  the 
Eighteenth  Century  to  economic  use,  but  we  must 
estimate  also  the  nature  and  value  of  the  animals 
which  came  to  be  fed  upon  that  area.  Here,  again, 
the  Taymouth  papers  give  us  authentic  information. 
From  other  sources  we  know  that  the  old  breeds 
of  Sheep  used  in  the  Highlands  were  small,  long- 


THE  APPEAL  FROM  CHIEFS  TO  OWNERS.  261 

legged,  and  with  coats  more  like  hair  than  wool.  So 
late  as  1730  this  was  well  described  by  Captain 
Burt  in  his  well-known  letters.  But  in  the  Tay- 
mouth  Book  we  have  an  accurate  statistical  return 
of  the  numbers  of  stones  (weight)  of  wool  which 
these  lean  creatures  produced  ;  and  from  this  return 
we  gather  that  it  took  27  fleeces  to  make  up  one 
stone  weight.  Now  the  poorest  Sheep  possessed  by 
even  the  poorest  Crofters  in  the  Highlands  will 
produce  a  stone  of  wool  for  every  six  Sheep,  and 
many  of  them  for  every  five  Sheep.  Each,  therefore, 
of  the  old  breed  was  worth  less  than  one-fifth  of 
one  of  the  poorest  of  the  new  breed.  It  is  no 
exaggeration  to  say  that  when  in  the  progress  of 
civilisation  it  was  discovered  that  the  finest  breed  of 
Sheep  could,  without  being  folded  by  night,  or 
watched  by  day,  live  all  the  year  round  upon  those 
mountains,  and  could  seek  out  every  nook  of  them 
in  search  of  every  patch  of  verdure,  a  very  large 
part  of  the  Highlands  was  as  much  redeemed  from 
absolute  waste  as  if  it  had  been  recovered  from 
the  sea. 

It  would,  however,  be  a  great  mistake  to  sup- 
pose that  those  great  areas  of  mountain  were  not 
valued,  and  very  highly  valued,  by  the  Owners  of 
them.  Regulations  laid  down  for  the  burning  of 
the  moors  are  as  strict  and  careful  as  for  the  culti- 
vation of  the  glens.  The  Moor-fowl  they  produced 
were  part  of  the  Owner's  commissariat.  No  part  of 
the  whole  country  ever  was,  or  ever  could  be,  sepa- 
rated from  the  rest.  In  the  first  place,  the  Sheal- 


262  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

ings,  however  few  and  isolated,  were  an  essential 
part  of  the  life  of  those  times.  The  saving  of  all 
the  home  pastures  during  six  weeks  in  the  height 
of  summer,  was  perhaps  even  more  of  a  gain  than 
the  mere  browsing  of  the  hills.  But,  besides  all 
this,  the  Owners  of  estates  in  those  days  set  a  high 
value  on  the  mountains  of  their  country  for  pur- 
poses of  the  chase.  It  is  a  great  blunder  to  suppose 
that  Deer  Forests  are  a  modern  invention  in  the 
Highlands.  The  high  money  value  of  those  Forests 
is  new,  but  nothing  else.  The  truth  is  that  an  area 
enormously  larger  than  now  was  formerly  occupied 
by  nothing  but  Deer.  Doubtless,  Wolves  and 
"  broken  men  "  poached  and  destroyed  them  much, 
and  lawlessness  often  led  to  the  waste  of  this 
resource  just  as  it  led  to  waste  and  ravage  beyond 
the  hills.  But  the  documents  preserved  in  the 
Breadalbane  Charter  Chest  prove  not  only  that 
venison  was  largely  depended  upon  as  an  article  of 
food  by  the  Landowners  of  the  Highlands  during 
the  centuries  which  lie  more  than  200  years  behind 
us,  but  that  they  took  great  care  to  preserve  Deer 
in  special  mountain  areas  set  apart  for  the  purpose. 
Thus  we  have  a  Lease  of  some  land  in  Glenurchy, 
being  part  of  the  same  hills  which  now  form  the 
Forest  of  the  Black  Mount,  granted  in  1687, 
and  indicating  very  ancient  customs,  of  which 
the  terms  were  that  the  Tenant  was  to  be  Forester 
—that  he  was  to  keep  off  intruders, — that  the 
Stock  of  Deer  and  Roe  upon  the  ground  as  given 
to  his  care  was  to  be  estimated  by  the  Chamber- 


THE  APPEAL  FROM  CHIEFS  TO  OWNERS.          263 

lain1  "  and  honest  men  in  the  country,"  so  that  it 
might  be  known  how  they  prospered  under  his  care, 
— that  he  was  not  himself  to  allow,  or  himself  to 
use,  any  pasturing  of  Cattle  except  upon  the  out- 
skirts of  the  Forest,  and  that  he  was  to  supply  the 
Lord's  House  at  Finlarig  with  not  less  than  sixteen 
Deer  between  Midsummer  and  Hallowmas.2 

Leases  and  other  transactions  of  this  kind,  and 
of  many  other  kinds  in  great  variety,  show  that  the 
Lords  of  Glenurchy  were  in  the  habit  of  dealing 
with  the  whole  area  of  their  Estate  as  sole  and 
undivided  Owners  ;  that  they  did  so  in  full  accord- 
ance not  only  with  the  phraseology  of  Charters,  but 
in  accordance  with  the  unbroken  traditions  of  im- 
memorial times,  and  with  the  repeatedly  expressed 
acquiescence,  approval,  and  co-operation  of  all 
classes  and  ranks  of  men  living  on  the  land.  In 
nothing  is  this  more  remarkable  than  in  the  fact 
that  many  of  these  men  were  themselves  the  living 
proofs  of  the  exercise  of  such  powers.  They  had 
applied  for  leave  to  come  into  the  country  under  the 
protection  of  these  powers,  and  continued  to  hold 
their  possessions  on  no  other  terms  whatever  than 
the  terms  granted  to  them  when  they  so  entered. 
I  have  already  hinted  at  the  probability  that  if 
we  could  now  fully  trace  the  history  of  the  popu- 
lation on  many  of  the  great  territorial  Estates  of 
the  Celtic  Chiefs  and  Landlords,  we  should  find 

1  The  title  by  which  the  chief  Factor  or  Commissioner  was  designated 
on  large  Estates  in  the  Highlands. 

2  Black  Book  of  Taymouth,  p.  426. 


264  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

that  no  small  part  of  them  had  been  recruited 
almost  as  soldiers  are  recruited,  or  adopted  in 
groups  and  families  of  "  broken  "  Septs,  who  came  to 
seek  protection,  and  were  selected  and  planted  on 
the  land  in  substitution  for  disloyal  or  predatory 
Septs  who  were  driven  out.  This  suspicion  is  amply 
confirmed  by  the  remarkable  collection  of  Bonds  of 
Manrent  which  are  published  in  the  Book  of  Tay- 
mouth.  For  here  we  have  every  variety  of  circum- 
stance which  can  show  the  absolute  powers  of 
disposal  over  the  land,  which  were  exercised  by  the 
chartered  Owners,  and  which  it  was  absolutely 
necessary  to  exercise,  for  the  peaceable  settlement 
and  improvement  of  the  country.  Moreover,  we 
have  in  these  Bonds  of  Manrent  a  very  clear  ex- 
planation of  the  language  which  has  suggested  to 
many  writers  a  hazy  notion  that  the  Celtic  Chiefs 
were  chosen  or  elected  by  their  people.  For  in 
these  Bonds  we  see  that  "  broken  men,"  coming  to 
settle  in  the  Lord  of  Glenurchy's  country,  were 
said  to  "  elect  him  to  be  their  Chief,"  exactly  in  the 
same  sense  in  which  a  recruit  may  be  said  to  elect 
the  commanding  officer  of  the  Regiment  in  which  he 
chooses  to  enlist.  Yet  the  Colonel  of  the  91st 
Highlanders  would  be  very  much  astonished  if  he 
were  said  to  be  elected  by  his  men. 

It  is  curious,  indeed,  to  observe  how  complete 
is  the  evidence  in  these  Documents  of  the  ancient, 
wide-spread,  and  perfectly  natural  customs  by  which 
Clans  in  the  Highlands  had  come  to  be  built  up 
during  many  centuries  on  the  ruins  of  the  prehistoric 


THE  APPEAL  FROM  CHIEFS  TO  OWNERS.          265 

Tribal  system.  Except  that  the  fragments  which 
from  time  to  time  aggregated  round  powerful  Chiefs 
were  generally  all  of  the  Celtic  race,  there  was  not 
necessarily  any  blood  relationship,  and  sometimes 
men  from  even  the  most  hostile  Septs  came  in  to  join. 
Thus  in  1552  several  families,  formerly  belonging  to 
the  Clan  Gregor,  renounce  Macgregor,  "their  auld 
Chief,"  and  in  their  Bond  of  Manrent  record  that 
they  have  elected  and  chosen  the  Lord  of  Glenurchy 
and  his  Heirs  as  "  their  chiefs  and  masters."1  This 
is  a  transaction  repeated  over  and  over  again,'  and 
seems  to  have  been  then  quite  common.  Nor  is  it 
less  interesting  to  observe  the  use  made  of  such 
men  when  they  were  admitted  and  accepted  as 
Tenants  on  the  Glenurchy  Estate.  In  the  following 
year,  1553,  we  have  a  Lease  granted  of  some  lands  in 
Rannoch,  taken  from  the  Clan  Gregor,  to  a  gentle- 
man of  the  name  of  MacCouliglas.  In  this  Lease 
we  see  the  inseparable  connection  which  existed 
then  between  the  political  and  the  agricultural 
interests  of  the  country — between  the  legal  exercise 
of  Chartered  rights,  and  the  suppression  of  the  rival 
powers  of  Celtic  Feudalism.  In  this  Lease  the 
Tenant  is  bound  to  take  in  no  Subtenants,  except 
such  as  should  be  subordinate  to  himself — to  support 
the  Lord  of  Glenurchy  in  all  his  lawful  quarrels 
except  against  the  Crown  or  against  his  Chief,  the 
Earl  of  Argyll — to  labour  and  manure  the  land  and 
to  make  his  principal  residence  upon  it — also  to 
guard  the  Forests  and  the  Woods — all  for  the 

1  Black  Book  of  Taymouth,  pp.  194-5. 


266  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

purposes  and  objects  which  are  explained  very 
clearly  in  these  words  : — "  Always  and  until  he  may 
bring  the  same  to  quietness  for  the  common  weal  of 
the  country,  and  shall  not  suffer  any  of  the  Clan 
Gregor  to  have  entry  or  intromission  of  the  foresaid 
lands."1  Nor  did  the  Lords  of  Glenurchy  limit 
their  action  for  these  purposes  within  their  own 
Estates.  By  Bonds  and  Agreements  between  them- 
selves and  smaller  Owners  of  land  who  were  less 
able  to  defend  their  own  interests,  this  younger 
branch  of  the  Clan  Campbell  exerted  their  influence 
all  around  them  to  the  same  ends.  Thus  in  1590 
they  bound  themselves  to  the  Robertsons  of  Strowan 
to  help  them  to  evict  and  remove  Tenants  who 
belonged  to  the  hated  Clan  Gregor,  and  to  maintain 
in  possession  the  loyal  men  whom  the  Robertsons 
might  plant  in  their  room.2  Thus,  again,  in  the 
case  of  a  Widow  Lady  in  possession  of  an  Estate  in 
which  probably  there  was  some  danger  of  her 
strength  being  insufficient — she  comes  under  an 
obligation  not  to  admit  as  her  Tenants  or  Subtenants 

o 

men  who  were  not  first  submitted  for  approval  to 
the  Lord  of  Glenurchy.3 

The  criminal  jurisdiction  of  the  Barony  seems  to 
have  been  exercised  with  care,  and  with  an  ample 
apparatus  of  form  and  of  publicity.  The  Assessors 
or  Jurors  seem  to  have  been  generally  fifteen  in 
number.  Fines  were  imposed  for  offences  against 
the  Statutes  of  the  Barony.  Sheep-stealing,  as  in 
our  own  code  up  to  a  very  recent  date,  was  punish- 

1  Book  of  Taymouth,  pp.  206-7.          -  Ibid.  pp.  246-7.       3  Ibid.  p.  186. 


THE  APPEAL  FROM  CHIEFS  TO  OWNERS.  267 

able  with  death,  and  one  case  is  given  with  the 
evidence  in  full,  in  which  this  penalty  was  inflicted — 
the  sentence  of  the  Court  being  pronounced  by  an 
officer  called  a  Chancellor.  But  the  great  criminals 
of  those  days  could  not  be  successfully  pursued  by 
the  ordinary  law,  whether  in  Royal  or  in  Baronial 
Courts.  The  most  notable  exercise  of  criminal 
jurisdiction  which  is  recorded  in  the  Book  of  Tay- 
mouth  is  that  by  which  the  Lord  of  Glenurchy,  in 
1552,  assisted  by  two  of  his  vassals,  Campbell  of 
Glenlyon  and  Menzies  of  Rannoch,  caught  and  be- 
headed one  Duncan  MacGregor  and  his  two  sons, 
who  for  more  than  forty  years  had  been  the  terror 
and  scourge  of  the  central  Highlands.1 

On  the  whole,  these  Journals  of  a  Baronial  Court 
give  a  very  favourable  impression  of  the  way  in 
which  they  were  ordinarily  conducted,  and  of  the 
indispensable  function  they  must  have  discharged 
throughout  the  country  in  familiarising  the  people 
with  the  highest  sanctions,  and  with  the  regular 
operation  of  authority  and  of  Law.  Considered 
merely  as  a  means  of  enforcing  the  few  and  simple 
rules  and  usages  which  a  very  rude  condition  of 
agriculture  rendered  necessary,  and  some  of  which 
were  requisite  for  the  management  of  a  great  terri- 
torial Estate,  they  must  have  played  a  valuable  and 
important  part.  In  this  capacity,  they  must  have 
been  essential  to  the  ready  and  easy  administration 
of  those  powers  of  Ownership  to  which  Parliament 
had  always  wisely  appealed  against  the  lawless  ties 

1  Black  Book  of  Taymouth,  Pref.  p.  xiii. 


2G8  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

by  which  men  then  banded  themselves  against 
Society.  It  is  evident  that  in  these  Courts,  with 
their  regular  and  stipulated  attendance  of  Tenants 
and  Feuars  of  all  classes,  the  authority  of  Baronial 
Proprietors  was  conducted  upon  principles  and  in 
the  exercise  of  powers  which  were  universally  ac- 
cepted as  just  and  rightful.  They  were  in  truth 
traditional  powers,  as  well  as  chartered  powers,  and 
beyond  them  the  memory  of  man  did  not  run.  This 
aspect  of  the  Heritable  Jurisdictions  has  been  too 
much  overlooked.  A  few  great  cases  of  abuse  arising 
out  of  the  inevitable  corruption  of  Celtic  Feudalism 
when  it  could  (as  it  often  did)  possess  itself  also  of 
such  an  instrument  of  power,  have  tended  to  raise 
an  unjust  amount  of  prejudice  against  the  old  Herit- 
able Jurisdictions.  In  their  own  time  they  were  in- 
dispensable. In  fact  they  were  highly  popular  Insti- 
tutions, both  for  the  local  administration  of  Justice, 
and  for  the  local  administration  of  rural  affairs. 

It  must  be  remembered  that  it  was  not  in  wha,t 
is  now  called  ordinary  crime,  still  less  was  it  in  even 
a  thought  connected  with  agrarian  violence,  that 
any  danger  to  civilisation  then  lay.  The  real  danger 
— the  constant  and  pressing  evil — from  which  Society 
then  suffered  was  one  which  could  rarely  be  dealt 
with  by  any  Court,  because  the  criminals  could  not 
be  brought  before  them  until  after  they  had  been 
subdued  by  arms.  Against  those  criminals  Parlia- 
ment appealed  to  great  Landowners  to  strike  at  the 
root  of  the  evil  by  not  allowing  "  broken  men  "  to 
live  upon  their  Estates.  It  is  not  until  we  read  the 


THE  APPEAL  FROM  CHIEFS  TO  OWNERS.  269 

contemporary  documents  of  that  time  that  we  can 
bring  home  to  ourselves  the  wretched  condition  of 
every  district  of  Scotland  which  was  sufficiently  near 
the  Highlands  to  be  within  striking  distance  of 
predatory  Clans.  A  most  false  and  perverted  senti- 
ment has  come  to  make  men  treat  as  a  joke,  or  even 
to  sing  of  as  a  glory,  the  doings  of  men  whose  con- 
duct was  characterised  by  a  treachery  and  brutality 
which  may  now  seem  almost  incredible.  It  is  not 
until  we  have  gone  into  some  detail,  and  looked 
matters  in  the  face  as  they  really  were,  that  we  can 
at  all  understand  the  absolute  necessity  which  was 
then  attached  to  the  complete  power  of  removal,  and 
of  replantation,  which  the  Landowners  always  had, 
and  which  they  were  specially  exhorted  to  use  in  the 
interests  of  industry  and  of  peace.  This  and  this 
alone  explains  the  constant  stipulations  recurring  in 
the  Bonds  of  Manrent  between  the  Lords  of  Glen- 
urchy  and  others,  whereby  it  is  anxiously  provided 
how  lands  are  to  be  cleared  of  predatory  Clans,  and 
repeopled  with  loyal  and  peaceful  men.  Some  of  these 
Bonds  seem  very  savage  in  their  terms,  but  they 
were  more  than  justified  by  the  incomparable  ferocity 
of  those  against  whom  they  were  directed.  I  will 
take  a  case  from  the  Book  of  Taymouth  that  may  in 
some  degree  help  us  to  realise  what  the  condition  of 
things  was  against  which  civilisation  had  to  fight. 

In  1589  the  great  event  which  occupied  attention 
in  Scotland  was  the  approaching  marriage  of  the 
Sovereign,  James  vi. ,  to  the  Princess  Anne  of  Den- 
mark. The  Bride  was  to  come  to  Scotland,  and 


270        SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

immense  preparations  were  made  to  receive  her.  It 
will  be  remembered  that  angry  winds  detained  the 
Princess — that  they  ultimately  dispersed  the  fleet 
conveying  her — that  the  King  was  obliged  to  post- 
pone his  marriage  till  he  himself  could  go  to  Denmark 
after  some  months'  delay — that  the  wedding  took 
place  accordingly  in  Denmark — and  that  James  and 
his  Bride  did  not  return  to  Scotland  until  May 
1590.  But  in  the  autumn  of  1589  all  this  was 
unforeseen.  It  was  known  that  the  Princess  was  on 
the  point  of  setting  sail,  and  with  a  favourable  breeze 
her  Convoy  might  have  been  seen  any  day  entering 
the  Firth  of  Forth  and  dropping  anchor  in  the 
harbour  of  Leith.  The  Nobles  and  the  people  of 
Scotland  seem  to  have  been  desirous  and  ambitious 
to  give  a  great  reception  to  the  Foreign  Princess 
who  was  to  be  their  Queen.  Each  and  all  were 
eager  to  contribute  something  of  their  best  for  the 
festivities  of  the  occasion.  Amongst  others,  Lord 
Drummond,  whose  territories  included  the  famous 
Forest  of  Glenartney,  desired  to  supply  his  Sovereign 
and  his  Queen  with  the  best  venison  from  a  pastur- 
age of  such  great  renown.  Not,  indeed,  for  more 
than  200  years  was  that  Forest  to  be  made  for  ever 
famous  beyond  the  bounds  of  Scotland  by  that 
immortal  opening  :— 

"  The  Stag  at  eve  had  drank  his  fill 
AVhere  danced  the  moon  on  Konan's  rill, 
And  deep  his  midnight  lair  had  made 
In  lone  Glenartney 's  hazel  shade."1 

1    The  Lad;/  of  (he  Lake,  canto  i. 


THE  APPEAL  FROM  CHIEFS  TO  OWNERS.          271 

But  although  its  reputation  was  then  local,  it  seems 
to  have  been  well  established.  There  was,  however, 
one  awkward  circumstance  about  it,  which  must 
have  been  a  serious  impediment  to  sport.  It  was 
dangerously  near  the  territory  and,  indeed,  the 
head-quarters  of  the  terrible  Clan  Gregor.  They 
were  specially  seated  on  the  hills  and  glens  which 
fall  into  the  northern  and  western  shores  of  the 
beautiful  Loch  Katrine,  whence  easy  passes  led  to 
the  neighbourhood  of  Glenartney.  The  sportsman 
in  that  Forest  might  very  suddenly  find  himself  con- 
verted from  the  Hunter  into  the  Hunted,  and  be 
overtaken  by  the  fate  he  had  intended  for  the  Deer. 
Lord  Drummond  knew  the  danger,  and  he  determined, 
therefore,  to  take  every  precaution.  Through  more 
than  one  friendly  channel,  therefore,  he  seems  to  have 
secured  a  safe-conduct  for  those  whom  he  intended 
to  send  to  slay  the  Deer.  He  then  chose  a  gentle- 
man of  his  own  Clan  and  name,  Drummond  of  Drum- 
monderocht,  who  was  to  repair  to  Glenartney  and 
procure  the  venison.  Accordingly  this  unfortunate 
man  proceeded  on  his  mission,  and  began  his  hunt. 
He  was  doubtless  watched  from  his  entrance,  and 
when  far  from  all  succour  or  alarm,  he  was  surrounded 
by  the  Macgregors,  and  barbarously  butchered.  The 
method  of  the  murder  is  quaintly  expressed  by  the 
document  which  relates  it  in  the  Book  of  Taymouih, 
which  tells  us  that  the  Clan  Gregor's  dealing  with 
poor  Drummond  was  that  they  "  cuttit  and  aff-took 
his  Heed."  According  to  another  barbarous  usage 
of  the  Clans,  the  bloody  head  of  the  victim  was 


272  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

exhibited  to  as  many  of  the  Clan  as  could  be  collected 
in  order  that  by  their  own  code  of  honour  the  whole 
of  them  should  be  implicated  in  the  deed,  and 
banded  equally  in  its  defence.  Ghastly  as  this  story 
is,  it  is  not  so  ghastly  as  its  sequel  which  is  told  by 
Sir  Walter  Scott.1  The  murderers  proceeded  with 
the  head  to  the  House  of  Stewart  of  Ardvoirlich, 
whose  wife  was  a  sister  of  the  victim.  Not  know- 
ing their  horrid  burden,  the  poor  lady  offered  them 
hospitality,  and  when  she  was  engaged  in  her 
kitchen  preparing  their  food,  they  found  means 
of  placing  her  brother's  bloody  head  upon  the  table, 
so  that  it  might  confront  her  on  her  return.  The 
dreadful  sight  drove  her  shrieking  into  the  woods, 
and  ended  in  depriving  her  of  her  reason.  But 
before  she  died  she  bore  a  child,  in  whom  the  taint 
of  her  insanity  seems  to  have  come  out  fifty-four 
years  later,  when  he  committed  a  treacherous  and 
cruel  murder  in  the  camp  of  the  Marquis  of  Mon- 
trose.  Such  are  among  the  shocking  incidents 
which  were  not  unfrequent  in  the  history  of  the 
Clans.  It  was  in  consequence  of  this  outrage  by 
the  Macgregors  and  of  others  of  the  same  kind 
deemed  specially  barbarous  even  in  those  days,  that 
we  find  war  to  the  knife  proclaimed  against  the  Clan 
Gregor,  and  in  one  case  we  have  a  Lease  of  lands 
given  by  the  Lord  of  Glenorchay,  in  which  it  is  the 
main  condition  of  the  Tenancy  that  the  holder  of 
it  should  be  in  deadly  feud  with  the  Macgregors, 
and  should  engage  to  slay  and  capture  them  on  all 

1    Tales  of  a  GnuiJ father,  chap.  xlii. 


THE  APPEAL  FROM  CHIEFS  TO  OWNERS.  273 

possible  occasions,  whether  by  open  or  by  secret 
means. 

We  see  then  how  the  chartered  rights  of  Owner- 
ship over  land,  involving  the  free  and  complete  dis- 
posal of  it  in  all  its  areas  and  in  all  its  surfaces, 
constituted  the  one  great  power  which  alone  could 
mitigate  and  ultimately  abolish  the  desperate  evils 
which  had  been  developed  under  the  lawless  powers 
and  tendencies  of  Celtic  Chiefs.  It  afforded  the 
only  means  of  introducing  with  authority  the  dawn- 
ing light  of  agricultural  improvement.  It  afforded 
the  only  means  of  substituting  universally  the  idea 
of  fixed  and  stipulated  rents,  for  uncertain  and 
arbitrary  exactions.  It  afforded  above  all  the  only 
means  of  securing  that  the  country  should  be  in- 
habited by  peaceful  and  loyal  men. 

Turning  now  from  the  Central  to  the  Western 
Highlands  we  find  the  same  processes  in  active 
operation,  and  always  with  the  same  result.  The 
transfer  of  territorial  Estates  from  Chiefs  who  were 
disloyal,  to  others  who  were  loyal  to  the  Crown  and 
the  Constitution,  was  uniformly  followed  by  cor- 
responding migrations  of  the  subordinate  population. 
These  were  not  clearances  of  the  true  old  Celtic 
type  such  as  that  which  doomed  the  whole  population 
of  the  Island  of  Eigg  to  suffocation  in  a  cave,  or 
that  which  swept  off  the  people  of  the  Upper  Dee 
under  the  exterminating  vengeance  of  the  Chiefs  of 
Huntly  and  of  Grant.  In  the  regular  transfers  of 
Ownership  effected  by  Charters  from  the  Crown, 
after  the  conquest  of  rebellious  Clans,  a  great  part 

VOL.  i.  s 


274  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

of  the  true  old  "  nativi,"  or  Celtic  occupiers,  had 
never  any  difficulty  in  transferring  their  allegiance 
to  a  new  Chief  or  Landowner.  Smaller  Septs  who 
had  settled  under  the  protection  of  some  great  Chief 
were  equally  ready  to  accept  the  same  protection 
from  his  successor,  and  so  it  resulted  that  those  who 
were  actually  removed  were  only  the  military  and 
predatory  elements  of  the  Clan.  Still,  this  element 
was  large  enough,  and  above  all,  its  possessions  in 
lands  and  "  rooms  "  were  always  large  enough  to 
give  scope  for  extensive  re-plantation  of  the  country. 
All  this  indeed  had  been  going  on  for  centuries,  but 
generally  until  the  times  of  which  we  are  now 
speaking,  there  was  little  change  for  the  better  in 
these  re-plantations.  One  Clan  superseded  another 
by  massacre  or  displacement.  But  the  new  comers 
were  as  purely  military  and  as  purely  predatory  as 
their  predecessors  had  been,  and  no  new  element  of 
value  either  in  blood  or  in  habits  and  ideas  wras 
rooted  in  the  country.  Now,  however,  after  the 
Union  of  the  Crowns,  and  the  gradual  but  steady 
establishment  of  more  civilised  Lords  and  Barons  in 
the  Highlands,  these  re-plantations  of  the  country, 
often  gradual  but  continuous  in  their  operation, 
worked  an  important  change.  Not  only  was  new 
blood  frequently  introduced,  but  also  "  milder 
manners,  purer  laws  ; "  whilst  the  whole  mind  and 
attention  both  of  Owners  and  of  Occupiers  of  the 
soil  began  to  be  set  on  living  by  peaceful  industry 
instead  of  by  predatory  violence. 

We  have  one  striking  illustration  of  the  great  and 


THE  APPEAL  FROM  CHIEFS  TO  OWNERS.  275 

beneficent  changes  which  were  thus  brought  about, 
in  the  history  of  the  Highland  District  of  Kintyre 
in  the  county  of  Argyll.  There  is  no  more  remark- 
able feature  in  the  physical  geography  of  Scotland 
than  the  long  narrow  Peninsula  of  Kintyre  which 
stretches  so  far  out  into  the  Western  Sea  that  at 
its  termination  in  that  direction  it  approaches  within 
14  miles  of  the  Irish  Coast.  Round  the  stormy 
Headland  thus  presented  to  the  western  winds  the 
whole  force  of  the  Oceanic  tidal  wave  from  the 
North  rushes  in  boiling  eddies,  rising  constantly  into 
foaming  and  dangerous  seas.  The  brave  naviga- 
tors of  the  North  must  have  rounded  it  constantly 
in  their  way  from  the  Northern  to  the  Southern 
Isles.  But  they  had  a  method  of  avoiding  it  with 
at  least  their  lighter  vessels,  for  across  the  narrow 
Isthmus  which  separates  Kintyre  from  Knapdale  on 
the  North,  they  were  accustomed  to  drag  their 
Galleys  from  Loch  Tarbet  to  launch  them  in  Loch 
Fyne.  They  thus  anticipated  an  economy  of  time, 
of  distance,  and  of  danger  which  our  modern  coast- 
ing trade  does  not  now  enjoy,  but  which  will 
certainly  be  accomplished  some  day  whenever  the 
eyes  of  enterprise  and  of  common  sense  are  opened 
to  the  obvious  utility  and  value  of  the  short  canal 
which  alone  is  needed  at  that  point  to  unite  the 
Eastern  and  Western  waters,  and  to  escape  some  60 
miles  of  stormy  and  dangerous  navigation. 

A  great  area  of  land  so  conspicuous  to  all  comers 
whether  from  the  South  or  from  the  North, — which 
fronted  the  navigators  northwards  from  Galloway 


276  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

and  from  Man,  and  flanked  on  the  East  for  many 
miles  the  course  of  Galleys  southwards  from  Mull, 
Skye,  and  the  Scandinavian  Seas, — must  have  from 
the  earliest  times  attracted  the  notice  of  all  the  hardy 
Tribes  which  were  peopling  those  lands  with  settlers. 
Nor  would  this  attraction  be  diminished  when 
they  landed  on  it.  Hilly,  but  hardly  mountainous,— 
its  green  sea  margins, — the  slopes  above  its  low  cliffs 
which  have  been  long  abandoned  by  the  waves,— 
and  here  and  there  wide  openings  of  comparatively 
level  land, — all  afforded  precisely  the  sort  of  country 
most  easily  converted  to  purposes  of  pasture  and 
of  the  rude  cereal  cultivation  which  was  then 
practised.  Moreover,  there  was  another  great  fea- 
ture about  Kintyre  which  has  always  determined 
the  early  settlements  of  maritime  populations. 
Near  the  South-eastern  termination  of  Kintyre  its 
shores  retreat  suddenly  into  a  long  and  deep  bay,  or 
loch,  somewhat  sinuous  in  its  course,  and  with  its 
entrance  marked  by  a  high  and  precipitous  island, 
which  effectually  protects  one  of  the  finest  harbours 
on  the  British  coasts. 

Here,  accordingly,  we  find  that  the  Scoto-Irish 
missionaries  had  established  one  of  their  earliest 
churches,  and  Kiaran,  one  of  Columba's  followers, 
had  given  his  name  to  the  harbour  and  the  loch. 
Here,  in  later  times,  the  Kings  of  Scotland  had 
erected  a  castle,  and  in  their  naval  expeditions  to 
and  from  the  Isles,  they  had  repeatedly  made  it  a 
point  of  gathering  or  rest.  In  all  the  contests 
for  and  about  the  Lordship  of  the  Isles,  Kintyre 


THE  APPEAL  FROM  CHIEFS  TO  OWNERS.  277 

was  treated  practically  as  one  of  the  Islands  from 
its  almost  exclusively  maritime  position.  The  Lord 
of  Islay  and  of  Kintyre  had  befriended  Bruce, 
had  harboured  him  in  Kintyre,  and  the  place 
in  which  he  entertained  him  is  as  peculiar  and 
beautiful  as  many  more  celebrated  sites.  All 
round  the  Western  coast  of  Scotland  there  are  many 
remains  of  the  Old  Red  Sandstone  rocks,  which 
geologically  are  of  much  more  recent  date  than  the 
grey  and  slaty  schists  which  form  the  great  mass  of 
the  Highland  mountains.  Along  the  shores  of  Kin- 
tyre  these  remains  are  chiefly  confined  to  the  out- 
lines of  the  existing  shore,  and  to  an  older  line  of 
beach,  from  which  the  sea  has  now  retired.  At 
many  places  they  present  the  character  of  pudding- 
stones,  or  of  a  conglomerate  of  pebbles  cemented  in 
a  red  paste  of  sand.  Near  the  south  end  of  Kintyre 
these  rocks  are  at  some  points  conspicuous.  At  one 
spot  they  present  a  remarkable  position  of  defence. 
In  a  recess  of  the  coast,  containing  some  of  the 
richest  land  in  Kintyre,  in  the  middle  of  a  beautiful 
curved  bay  of  sand  and  pebbles,  backed  by  link- 
land,  meadow,  and  dunes,  some  strata  of  this  con- 
glomerate have  been  tilted  up,  and  now  form  a 
small  rocky  promontory  with  sharp  edges,  turned 
steeply  to  the  sky.  On  one  side  they  fall  in  a 
perpendicular  precipice  eastwards  into  the  sea ; 
on  the  other  side  they  slope  abruptly  into  a 
shallow  bay,  whilst  farther  round  towards  the 
beach  the  place  is  protected  by  the  sea-pool  of  a 
considerable  stream.  By  one  narrow  neck  alone  is 


278  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

it  accessible  at  all  from  the  land.  On  this  curious 
"  Dun  "  or  isolated  rocky  headland  the  Lords  of  the 
Isles,  and  all  the  Clans  and  Tribes  who  ever  settled 
in  Kintyre,  had  erected  one  of  the  principal  castles 
of  defence.  "  Dunaverty  "  commands  a  magnificent 
view.  From  it  the  coast  of  Ireland  seems  close  at 
hand,  with  the  island  of  Rathlin,  Bruce's  hid- 
ing-place in  1307,  seen  to  the  extreme  right.  South- 
ward and  eastward  it  swept  all  the  sea  approaches 
from  the  Isle  of  Man  and  from  the  Clyde.  In  this 
stronghold,  when  the  Clan  Donnell  had  entered  on 
their  long  career  of  hostility  to  the  Crown  of  Scot- 
land, they  had  often  defied  the  attacks  of  their 
enemies.  In  the  final  contest,  however,  with  the 
Campbells  and  other  Clans  who  were  loyal  to  the 
Scottish  Monarchy,  they  were  defeated  early  in  the 
17th  century,  and  Kintyre  passed  into  the  hands  of 
the  Earl  of  Argyll,  the  leader  of  the  Confederacy 
which  acted  for  the  Crown.  The  Macdonalds  of  Islay 
and  Kintyre,  however,  had  not  in  vain  meddled  so 
long  in  the  bloody  rebellions  and  feuds  of  the  Irish 
Celts.  They  had  established  themselves  there  in 
territorial  possessions,  and  in  the  succeeding  reign 
of  Charles  I.  they  blossomed  into  the  Earls  of 
Antrim,  and  did  their  best  once  more  to  subdue 
Scotland  under  an  Irish  and  Catholic  invasion. 

When  the  Campbells  entered  upon  possession  of 
Kintyre  they  found  the  country  to  a  large  extent 
devastated  by  wars.  Out  of  353  merk-lands  in  the 
whole  Peninsula  no  less  than  113  were  lying  waste.1 

1  Gregory's  Jfintory,  p.  308. 


THE  APPEAL  FROM  CHIEFS  TO  OWNERS.  279 

As  in  other  similar  cases  the  native  people  and 
the  minor  Clans  who  were  willing  to  accept  a 
new  Chief  were  unmolested,  and  not  a  few  of 
them  remain  in  possession  of  their  lands  to  the 
present  day.  But  the  migration  of  the  leaders  to 
Ireland,  and  the  devastation  which  continual  wars 
had  caused,  left  large  areas  to  be  fillect  up  on  the 
principles  which  had  been  so  wisely  inculcated 
upon  Owners  by  the  Parliament  of  1587.  It  is 
doubtful  whether  this  process  of  the  plantation  of 
peaceful  and  loyal  men  was  ever  pursued  in  any 
part  of  Scotland  under  such  peculiar  circumstances 
or  with  so  happy  a  result.  It  so  fell  out  that  not 
many  years  after  Kintyre  had  been  placed  in  the 
possession  of  the  Argyll  family,  the  great  contests 
of  our  civil  wars  began.  In  that  contest  the  Mar- 
quis of  Argyll  took  the  side  which  was  identified 
with  the  Reformed  Church  in  Scotland,  and  with 
the  determined  opposition  of  the  Presbyterian 
people  to  the  arbitrary  measures  of  Charles  I. 
So  early  as  about  the  year  1640  he  either  invited 
or  accepted  the  offer  of  a  number  of  Presbyterian 
families  from  the  counties  of  Ayr  and  Renfrew  who 
were  disgusted  by  the  persistent  measures  of  the 
Government  to  impose  Episcopacy  upon  the  Church. 
These  families  the  Marquis  of  Argyll  settled  upon 
his  estate  in  Kintyre.  A  second  plantation  of  Low- 
landers  took  place  between  1649  and  1660.  This 
was  only  one  item  in  the  whole  course  of  his  policy 
and  conduct  in  support  of  the  popular  cause  which 
brought  him  to  the  scaffold  in  1661.  His  son, 


280  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

however,  the  ninth  Earl,  inherited  his  sympathies, 
and  pursued  the  same  course,  at  the  same  ultimate 
sacrifice  of  his  life.  After  the  Restoration,  as  is  well 
known,  all  the  power  of  Charles  n.  and  his  agents 
was  employed  in  hunting  down  the  opponents  of 
his  policy,  religious  and  political,  who  were  espe- 
cially numerous,  and  especially  devoted  in  the 
Western  counties  south  of  the  Firth  of  Clyde.  As 
Bruce  used  to  watch,  sometimes  from  Kintyre  or 
from  Arran,  the  beacon-fires  which  were  lighted  for 
him  on  the  opposite  coast  of  his  native  Carrick, 
so  did  the  Earl  of  Argyll  or  his  agents  watch  the 
swellings  of  persecution  which  raged  against  the 
Covenanters  of  Renfrewshire,  of  Ayrshire,  and  of 
Wigtown.  On  a  fine  summer  evening  the  low,  pink 
hills  of  these  coasts  seem  near  to  men  who  look  for 
them  from  the  headlands  of  Kintyre,  whilst  the 
noble  precipices  of  Ailsa  Craig  are,  as  it  were,  a  half- 
way milestone  between  the  coasts.  With  a  south- 
erly or  western  wind  a  few  hours'  sail  was  sufficient 
for  the  passage.  What  more  natural  than  that  the 
Covenanters  should  look  occasionally  across  the 
water,  and  should  seek  for  shelter  in  a  portion  of  the 
Highlands  where  so  many  of  their  kindred  were 
thriving  well,  and  which  was  under  the  rule  of  a 
Chief  who  exercised  his  power  in  favour  of  the  Con- 
stitution and  of  the  Protestant  religion  ?  And  so 
it  was  that  a  third  migration  came  into  Kintyre. 
The  persecuted  Lowlanders  crossed  in  not  incon- 
siderable numbers,  and  were  again  planted  in  various 
vacant  lands  all  over  the  estate. 


THE  APPEAL  FROM  CHIEFS  TO  OWNERS.  281 

It  will  mark  the  continuity  of  Scottish  history, 
and  the  sense  in  which  our  days  have  been  hitherto 
"  bound  each  to  each  by  natural  piety,"  if  I  relate 
here  an  incident  which  occurred  to  myself  in  connec- 
tion with  this  plantation  of  Lowlanders  in  Kin  tyre. 

The  deep  depression  in  the  line  of  hills  constitut- 
ing the  backbone  of  Kintyre,  which  gives  entrance 
to  the  sea  along  the  shores  of  Loch  Kilkiaran  (now 
called  Campbelltown  Loch),  is  a  depression  which 
stretches  right  across  the  Peninsula  from  sea  to  sea. 
It  amounts,  indeed,  to  a  complete  gap  in  the  hills, 
and  it  widens  rapidly  towards  the  western  shore, 
where  it  terminates  in  a  long  sandy  bay,  called 
Machrihanish,  into  which  the  surf  of  the  Atlantic 
rolls  with  such  tremendous  force  that  the  roar  of  its 
breakers  can  be  often  heard,  in  favourable  conditions 
of  the  atmosphere,  so  far  off  as  the  coast  of  Ayr- 
shire. This  great  depression  in  the  central  ridge 
is  a  feature  of  much  interest  both  in  the  geolo- 
gical structure  and  in  the  economic  history  of  the 
district.  Its  geological  interest  lies  in  its  im- 
mense antiquity.  It  dates  from  before  the  forma- 
tion of  the  Coal  Measures.  Then  as  now,  this  hollow 
was  a  deep  depression  in  some  surrounding  country, 
and  formed  a  "  basin"  in  which  the  usual  succession 
of  deposits  was  made  which  constitute  a  coal  field. 
It  is  entirely  separated  from  the  other  coal  fields 
of  Scotland,  and  is  the  only  one  existing  in  any 
portion  of  the  Highlands.1  Ever  since  that  age  of 

1  Secondary  Coals  exist  in  Sutherland,  and  some  small  seams  of  Ter- 
tiary age  in  the  Island  of  Mull.  But  the  true  Coals  of  the  Carboniferous 
age  exist  nowhere  in  any  portion  of  the  Highland  area. 


282  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

immeasurable  antiquity  it  has  continued  to  be  sub- 
ject   to  the  same  conditions  of  alternative  depres- 
sion under  the  sea,  and  of  slight  elevation  above  it. 
A  thick  bed  of  leaves,   derived  from  the  tangled 
growths  of  willow  and  of  hazel,  testify  to  a  time, 
very  recent,  when  it  was  occupied  by  brushwood. 
Over  that  bed  there  is  laid  a  deposit  of  marine  gravel 
and  of  clay,  showing  that  it  had  been  again  lowered 
under   the  ocean,  and   the  south    end   of   Kintyre 
had  been  made  an  island  by  a  broad  belt  of  tidal 
waters    washing   through  Loch   Kilkiaran  between 
the    eastern   and  western  shores.     Another  eleva- 
tion had  lifted  this  area   again — also   during  very 
recent  times — and  it  became  covered  with  a  dense 
forest  of  oak,  whose  immense  roots    and   gnarled 
trunks  testify  to  the  length  and  greatness  of  their 
ancient  growth.     Whether    by  fire  or   by  inunda- 
tion, or  by  other  means,  this  forest  fell  into  decay, 
and     stagnant    waters    soon     accumulated,    round 
and  over  its  fallen  trunks,  the  matted  mosses  and 
other  vegetation  which  by  decay  and  pressure  be- 
came converted  into  peat.     Hence  the  whole  of  this 
wide  depression    became   one   enormous  peat- moss, 
stretching  from  the  foot  of  the  hills  on  one  side  to 
the  foot  of  the  hills  upon   the   other.     Indications 
have  been  found  that  Prehistoric  Man  occupied  the 
country   before   these    forests   grew  ;    whilst    more 
recent   remains    prove    that   races  of  much   higher 
civilisation  had  carried  their  arms  around  the  great 
moss,  and  had  occasionally  hid  them  in  recesses  of 
the  peat.     Very  lately  a  ploughman  was  startled  by 


THE  APPEAL  FBOM  CHIEFS  TO  OWNERS.          283 

the  clash  and  clangor  of  sounding  metal,  and  by 
shining  fragments  scattering  around  his  feet.  His 
ploughshare  had  broken  up  a  bundle  of  those  beautiful 
leaf-shaped  swords  of  bronze,  with  which  the  Britons 
and  the  Picts  had  encountered  the  legions  of  Csesar 
and  of  Hadrian.  The  silent  continuity  of  causation 
had  in  this,  as  in  many  other  cases,  been  perfectly 
.  compatible  with  a  very  sudden  catastrophe.  Buried, 
perhaps,  originally  many  feet  beneath  the  surface 
of  the  moss,  these  swords  had  escaped  the  cutting 
of  drains,  and  for  probably  2000  years  had  lain 
where  they  were  found.  With  infinitesimal  slow- 
ness after  it  had  been  reclaimed,  the  peat  had 
been  shrinking  and  settling  from  increasing  loss  of 
moisture,  until  at  last  the  moment  came  when 
the  ordinary  depth  of  ploughing  just  enabled  the 
coulter  to  reach  the  long-hidden  armour  of  some 
doughty  Pict,  and  then  his  graceful  yet  formidable 
swords  were  dashed  along  a  very  different  surface 
from  that  in  which  he  had  hidden  them. 

Since  the  beginning  of  historic  times  it  has 
been  the  work  of  Husbandry  to  cultivate  along 
the  margins  of  this  great  sheet  of  bog,  and 
here  and  there  to  make  inroads  upon  it,  and  to 
extend  the  area  of  pasture  or  of  corn.  Under  the 
manly  system  of  Free  Covenants  between  Owners 
and  Cultivators  this  work  has  gone  bravely  on,  and 
some  of  the  finest  farms  in  Kintyre  have  been 
won  and  furnished  upon  the  old  area  of  bog.  On 
one  of  my  first  visits  to  the  Estate  I  was  told  of  a 
small  farm  situated  in  the  middle  of  this  moss,  upon 


284  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

one  of  the  little  hills  which  rise  out  of  it,  and  afford 
a  vantage  ground  of  dry  land.  The  Tenant  was  said 
to  be  the  lineal  descendant  of  one  of  the  earliest 
refugees  from  the  Lowlands,  whose  family  had  re- 
mained ever  since  upon  the  Estate,  although  they 
had  changed  repeatedly  from  one  possession  to 
another.  The  historical  interest  attaching  to  such 
a  case,  as  well  as  the  account  given  to  me  of  the 
character  of  the  family,  led  me  at  once  to  visit  it. 
I  found  it  a  typical  example  of  the  middle  stage  of 
progress  between  the  genuine  old  Highland  "  stead- 
ing," and  the  finished  and  elaborate  accommodation 
which  farmers  have  been  asking  and  have  been 
getting  during  the  last  half  century.  One  long 
line  of  low  thatched  houses  built  across  the  slope 
of  the  Hill  without  any  attempt  to  keep  a  level,  or 
to  have  any  dressing  of  the  ground,  recalled  the 
oldest  arrangement  of  Highland  hovels.  As  in 
them,  the  shelters  for  cattle  were  part  of  the  same 
range,  and  in  close  proximity  to  the  kitchen. 
As  in  them,  too,  this  apartment  was  without  a 
chimney,  the  fire  being  made  in  the  centre  of  the 
floor,  round  which  the  family  congregated  in  the 
evenings,  the  smoke  curling  out  at  an  aperture 
in  the  raftered  roof,  whilst  the  heat  and  light 
were  distributed  in  a  warm  and  comfortable  glow 
among  those  who  sat  around.  On  the  other 
hand,  the  best  apartment  was  a  neat  parlour  with  a 
regular  fireplace,  and  a  couple  of  beds  somewhat 
recessed  in  the  wall.  Moreover,  instead  of  mere  turf 
and  loose  stones  according  to  the  old  Highland 


THE  APPEAL  FROM  CHIEFS  TO  OWNERS.  285 

fashion,  the  walls  were  rough  stones  put  together 
with  lime,  and  though  by  no  means  rigidly  perpen- 
dicular, yet  fairly  solid.  The  table  in  the  parlour  was 
covered  with  such  Books  as  Sir  William  Hamilton's 
Lectures,  and  the  best  treatises  on  Philosophy  and 
Theology.  These  were  the  prizes  won  by  some 
of  the  sons  at  the  University  of  Glasgow.  The 
father  of  the  family,  whose  name  was  Huie,  was 
accustomed  to  sit  on  a  rough  but  picturesque  chair 
of  oak,  rudely  carved,  with  the  date  of  1626  cut 
in  conspicuous  figures  on  corners  of  the  back. 
This  was  a  relic  of  their  migration.  It  had  been 
brought  with  them  from  Ayrshire  when  their  an- 
cestors had  sought  refuge  from  the  persecutions 
of  the  Restoration. 

Of  its  hereditary  owner  I  cannot  speak  with- 
out memories  of  affectionate  respect.  He  was 
as  much  a  bit  of  continuous  history  as  the  chair 
which  was  his  domestic  throne.  Not  less  visibly 
than  on  it,  the  date  of  1626  was  carved  in 
legible  letters  on  his  brow.  As  a  Celt  myself  I 
like  to  think  that  the  ease  and  natural  dignity  of 
his  manners  were  not  wholly  underived  from  the 
Highland  country  to  which  his  ancestors  had  re- 
moved. But  the  type  of  his  religion  came,  undoubt- 
edly, from  the  Lowlands.  It  was  the  religion  of 
the  Covenant  very  slightly  modified.  It  did  not 
show  itself  ostentatiously,  but  in  little  things. 
Forms  which  have  become  hardly  more  than  forms 
to  us,  were  vivid  realities  to  him.  "  Grace  before 
meat "  was  one  of  these.  I  have  heard  it  sung  in 


286  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

voices  of  exquisite  harmony  by  the  Glee  Club  in 
London.  I  have  heard  it  monotonously  recited  in 
Latin  in  College  Halls.  I  have  heard  it  droned  by 
chaplains  at  public  feasts  ;  and  who  has  not  seen  the 
last  stages  of  its  decay  in  the  scarcely  instantaneous 
pause  of  tongues  at  an  ordinary  table  ?  But  never 
but  once  have  I  heard  a  real  "  grace  before  meat." 
After  a  ride  of  some  eleven  miles,  with  as  much  before 
him  on  his  return,  I  had  occasion  once  to  urge  Mr. 
Huie,  then  above  eighty  years  of  age,  to  take  some 
food.  He  would  accept  nothing  but  tea  and  bread. 
But  before  taking  it  he  said  he  was  sure  I  would 
excuse  a  habit  which  he  knew  had  become  unusual. 
And  then,  bowing  his  grey  head,  he  poured  forth  a 
prayer,  which  was  a  prayer  indeed,  full  of  the  old 
man's  belief  in  the  presence  and  in  the  reality  of  the 
Providence  which  dispensed  his  daily  bread.  He 
was  exactly  the  sort  of  man  who  would  have  led 
the  singing  of  a  congregation  in  the  hills  when 
the  ruffians  of  Charles  n.  and  of  Lauderdale  were 
already  galloping  upon  them. 

Such  is  the  sturdy  blood  which  was  brought 
into  this  district  of  the  Highlands  by  the  right  of 
letting  land  freely  to  free  men,  in  the  exercise  of  the 
ordinary  powers  of  Ownership.  It  has  answered 
admirably.  The  Highlanders  were  not  supplanted. 
Both  races  were,  as  elsewhere  in  the  best  parts  of 
Scotland,  blended  and  interfused.  The  process  has 
gone  on  for  more  than  200  years.  Celtic  Tenants 
are  still  among  the  best — not  by  special  favour,  but 
under  the  stimulus  of  a  healthy  rivalry,  and  by 


THE  APPEAL  FROM  CHIEFS  TO  OWNERS.  287 

survival  of  the  fittest.  There  is  no  race  in  the 
world  more  intelligent  or  more  industrious  than  the 
Celts  when  they  are  brought  under  such  conditions. 
Campbells  and  Stewarts,  Mackays  and  Macalpines, 
are  found  side  by  side  with  Hunters,  and  Wallaces, 
and  Montgomeries,  and  no  district  in  any  part  of 
Scotland  has  made  such  rapid  advances  in  agricul- 
tural improvement. 

From  this  remarkable  example  of  the  powers  of 
Ownership  exerted  in  the  cause  of  liberty  and  of 
civilisation,  it  is  most  instructive  to  turn  to  one  of 
the  last  exhibitions  of  Celtic  Feudalism  yoked  to 
the  cause  of  despotism  and  oppression.  The  contrast 
is  all  the  more  remarkable  since  the  two  transactions 
may  be  said  to  have  been  contemporary,  and  to  have 
stood  in  close  relation  to  the  same  political  condi- 
tions. Probably  no  legitimate  Government  of  modern 
times  was  ever  so  utterly  bad  as  the  Government 
of  Scotland  under  Charles  II.,  conducted  by 
Middleton  and  Lauderdale,  and  animated  by  Arch- 
bishop Sharp.  The  passions  of  a  secular  despotism 
are  often  savage  enough,  but  they  are  generally  less 
relentless  when  they  stand  alone  than  when  they  are 
inspired  by  the  religious  passions  of  ecclesiastics. 
Both  were  combined  under  Charles  IT.  A  vindictive 
voluptuary  hounded  on  by  a  fanatical  priesthood,  was 
indeed  a  terrible  alliance.  They  determined  to  try 
to  bend  to  their  purpose  that  very  power  of  Owner- 
ship to  which  the  Parliament  of  Scotland  had 
appealed  with  a  nobler  aim.  They  determined  to  call 
upon  the  Barons  and  the  Proprietors  of  the  Western 


288  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

Counties  to  put  down  the  Presbyterian  Covenanters. 
For  this  purpose  a  Bond  was  presented  to  them  all, 
by  which  they  engaged  to  turn  out  of  their  farms 
and  from  off  their  lands,  all  Tenants  who  should 
attend  the  hated  Conventicles.      But  the  powers  of 
Ownership    had   already  brought   about   in    those 
counties  that  sympathy   of  feeling  and  identity  of 
interests  which  are  deeper  seated  than  the  ties  of 
a  traditional  brotherhood  in  blood  and  arms.     The 
Lowlanders,  as  we  have  seen,  had  also  been  related 
to  each  other,  not  less  than  the  Highlanders  as  Chiefs 
and  Clans.     But  only  enough  of  this  old  relationship 
remained  to  give  warmth  and  zeal  to  the  growing 
and  deepening  relationships  of  a  peaceful  and  settled 
industry.     The  Barons  and  the  Gentlemen  of  the 
Western  Counties  were  thrown  into  mutiny  against 
the  Government.      In  vain  were  they  threatened 
with  all  the  vengeance  of  the  Crown,  and  with  the 
quartering  upon  them  of  a  lawless  soldiery.    In.  vain 
were  the  King's  forces,  then  employed  in  the  north  of 
Ireland,  ordered  to  concentrate  upon  the  coast  near- 
est to  the  shores  of  Ayr  and  Galloway.    Some,  with 
loud  remonstrances  against  the  legality  and  justice 
of  such  a  bond — some,  with  silent  and  passive  but 
effective  resistance — a  few  only  with  even  a  nominal 
compliance — but  all  with  one  heart  and  mind,  either 
refused  to  take,  or  avoided  to  act,  upon  this  infamous 
engagement.   The  Government  then  bethought  them 
of  one  other  resource.     They  could  invoke  the  Clans. 
The  powers  of  Chartered  Ownership  had  failed  them. 
They  determined   to   appeal   to  Celtic   Feudalism. 


THE  APPEAL  FROM  CHIEFS  TO  OWNERS.  289 

And,  sad  to  say,  Celtic  Feudalism  answered  with  a 
bound. 

The   letter   of  Charles    n.,    approving   of   this 
infamous  proposal,  was  signed  on  the  llth  Decem- 
ber 1677.     Presbyterian   historians,  apparently  on 
solid  grounds  of  contemporary  evidence  and  know- 
ledge, universally  ascribe  this  idea  to  the  suggestion 
of  the   Bishops   and  their    clergy.      The   Govern- 
ment at  this    time   was   dominated   by  the   spirit 
of  religious  persecution,   and  as  Wodrow  quaintly 
expresses   it,    "  almost    entirely   in    the    hands    of 
Prelates,  grated  by  the  growth  of  those  who  dis- 
owned them."  l     The  Proprietors  in  the  Western 
Counties  were  told  that  unless  they  complied,  the 
well-known    predatory    Clans    of    the     Highlands 
would   be   armed,   assembled,   and  let  loose  upon 
them.     This  atrocious  threat  was  carried  into  exe- 
cution.    Chiefs  were  found  who  were  base  enough 
to  use  their  traditional   power   over  their  vassals 
and  retainers  for  the  purpose  of  invading  the  Low- 
lands like  a  foreign  army — of  living  at  free  quarters 
upon  the  property  of  their  countrymen,  and  by  the 
licensed  licence  of  an  undisciplined  soldiery,  of  com- 
pelling all  Proprietors  to  become  the  instruments  of 
tyranny  over  their  Tenants.     The  old  obligations  of 
Celtic   Feudalism   in   respect  to    "Hosting"  were 
called  into  operation,  and  a  force  of  no  less  than 
6000  men  was  launched  upon  the  Western  Counties 
to  punish  the  patriotism  and  humanity  of  Owners 
through  the  servility  and  despotism  of  Chiefs.    This 

1  Wodrow's  History,  ed.  1837,  vol.  ii.  p.  378. 
VOL.  I.  T 


290  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

force  is  known  in  the  history  of  Scotland  as  "  The 
Highland  Host."  During  several  weeks,  from  the 
end  of  January  to  the  beginning  of  March  1678,  it 
devastated  some  of  the  most  prosperous  districts  in 
the  counties  of  Lanark,  Renfrew,  and  Ayr,  until  at 
last  its  own  Chiefs  and  the  Government  began  to 
be  ashamed  of  the  results,  and  the  Highlanders  were 
ordered  home.  They  returned  laden  with  plunder, 
and  with  such  hatred  from  the  Lowlanders  that 
even  unarmed  men  mobbed  them  on  the  way,  and 
the  students  of  the  University  of  Glasgow  turned 
out  to  oppose  their  passage  of  a  bridge  over  the 
swollen  Clyde.  Some  of  their  heavier  plunder  they 
were  compelled  to  sacrifice.  But  the  damage  which 
they  had  done  in  three  districts  of  Ayr  called  Kyle, 
Cunninghame,  and  Carrick,  was  estimated  at  above 
£137,000 — an  enormous  sum  in  those  days.  When, 
besides  all  this  mere  damage  to  property,  we  add  the 
insults  and  outrages  which  long  dwelt  in  the  memory 
of  the  people,  we  cannot  be  surprised  at  the  fierce 
counter-passions  which  such  methods  of  government 
awoke,  and  which  culminated  early  in  the  following 
year  in  the  savage  murder  of  Archbishop  Sharp. 

The  blame — the  infamy  indeed — attaching  to  the 
action  of  this  Highland  Host  must  be  laid  entirely 
on  the  Government  and  on  the  Chiefs  who  were  its 
authors.  The  poor  Highlanders  employed  had  no 
understanding  of  the  cause  in  which  they  were 
enlisted,  nor  did  their  habits,  history,  or  training 
enable  them  to  form  any  estimate  of  the  immorality 
of  their  proceedings.  Many  of  them  were,  doubt- 


THE  APPEAL  FROM  CHIEFS  TO  OWNERS.  291 

less,  "broken  men"  who  lived  habitually  on  the 
plunder  of  neighbouring  Lowlands,  whilst  others 
were  bound  by  Celtic  usages  to  follow  the  leader  of 
their  Sept,  who  again  was  probably  bound  under  a 
Bond  of  Manrent  to  follow  his  greater  Chief  in  all 
his  "lawful  emprises."  What  more  lawful  quarrel 
could  there  be  than  against  Lowlanders  who  would 
not  do  the  Lord's  bidding  in  religious  as  well  as  in 
secular  matters  ?  What  more  legitimate  than  to 
have  their  predatory  habits  gratified  under  the 
direct  sanction  of  the  Crown  and  of  their  own 
Chiefs  ?  All  this  is  true,  and  serves  to  concentrate 
our  censure  on  other  men  than  the  natives  who 
came  from  the  banks  of  the  Earn  and  the  Dochart, 
the  slopes  of  Lennox  and  Lochaber,  or  the  glens  of 
the  Mounth  and  Drumalban.  But  all  the  more  on 
this  account  is  our  attention  fixed  on  the  striking 
contrast  between  the  tendencies  and  working  of 
Celtic  Feudalism,  as  compared  with  the  tendencies 
and  working  of  Chartered  Ownership.  All  the  more 
does  it  condemn  the  Government  which  reversed 
the  long-standing  national  appeal  made  and  per- 
petually renewed  during  many  centuries,  from 
unwritten  and  licentious  usages,  to  defined,  and 
lawful,  and  recorded  rights. 

Most  fortunately  this  contrast,  although  sharp 
and  violent  in  this  manifestation  of  it,  was  not  a 
contrast  marked  by  any  line  of  geographical  division. 
As  in  the  Lowlands  old  feelings  of  Clanship,  and  of 
at  least  memories  of  common  blood,  were  not  want- 
ing to  sweeten  and  consolidate  the  purely  indus- 


292  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

trial  relations  of  Landlord  and  of  Tenant,  so  in  the 
Highlands  no  man  ever  owned  land  merely  because 
he  was  a  Chief,  nor  did  any  man  ever  occupy  land 
as  a  Tenant  merely  because  he  was  a  Clansman. 
Any  man  at  any  time  might  become  a  Clansman  by 
merely  changing  his  name  and  addicting  himself  to 
a  new  master,  or  without  any  change  of  name  by 
submitting  to  the  bondages  of  Manrent.  But 
neither  of  these  very  easy  processes  could  give  any 
right  to  the  occupation  of  land  unless  his  new  Chief 
in  his  other  capacity  of  Owner  chose  to  give  him  a 
"rowm"  or  a  farm.  Everywhere,  all  over  the  High- 
lands, and  ever  since  the  dawn  of  history,  the  legal 
rights  both  of  Ownership  and  of  Occupation  were 
founded  on  Charters  and  on  Covenants.  These  and 
these  only  could  be  pleaded  for  the  security  of  either. 
The  powers  of  Celtic  Feudalism  were  constantly 
exercised  in  disturbing  both  kinds  of  tenure  by  law- 
less violence.  But  in  the  worst  days  of  Chiefs  and 
Clans  they  had  not  pretended  to  supplant  the  rights 
of  Ownership  or  to  supersede  the  laws  of  the  Realm 
as  the  foundations  of  civil  rights.  Even  among  the 
lawless  Islanders  the  conditions  of  tenure  were  recog- 
nised as  founded  on  Charters  and  on  Covenants. 
For  all  civil  purposes  these  had  been  known,  and 
legally  established,  for  many  centuries  all  over  the 
Highlands,  and  had  been  every  day  becoming  more 
supreme  in  exact  proportion  as  each  district  became 
more  settled  and  more  secure  from  violence. 

There  is  a  striking  illustration  of  this  in  a  trans- 
action which   arose   out  of  the  meeting  of  Chiefs 


THE  APPEAL  FROM  CHIEFS  TO  OWNERS.  293 

held  at  lona  under  the  direction  of  James  vi.  in 
1609.  No  two  Clans  had  a  more  ferocious  feud,  or 
one  of  longer  standing,  than  the  Macdonalds  of 
Sleat  and  the  Macleods  of  Harris.  But  in  the 
temper  of  reconciliation  and  of  repentance  which 
was  then  brought  about  amidst  the  sacred  memories 
and  associations  of  Coluinba's  Isle,  the  Chiefs  of 
those  two  Clans  entered  into  a  covenant  of  peace. 
All  their  slaughters,  murders,  and  ravages  com- 
mitted against  each  other  were  to  be  forgotten  and 
forgiven, — "all  their  respective  friends,  servants, 
tenants,  and  dependars"  being  answered  for  by 
their  respective  Lords.  But  lest  this  abnegation  of 
all  mutual  hostility  or  revenge  should  be  held  to 
include  or  to  imply  any  sacrifice  on  the  part  of 
either  of  them  of  their  perfect  freedom  over  the 
disposal  of  their  own  estates  as  regards  the  letting 
of  them  to  whom  they  would,  we  have  in  the 
middle  of  the  document  this  emphatic  reservation 
of  the  rights  of  Ownership  : — "  Without  prejudice 
to  either  of  the  aforesaid  parties  to  set  (let)  what- 
soever lands  alleged  pertaining  to  either  of  them 
lying  within  the  other's  bounds  as  law  will." l  Here 
we  see  that  even  in  these  Insular  districts  of  the 
Highlands  where  Celtic  Feudalism  and  the  Clan 
organisation  had  reached  its  highest  and  most 
destructive  development,  it  was  still  the  acknow- 
ledged right  of  every  Owner  of  land  to  let  his  Farms 
independent  of  it,  and  that  this  right  of  the  free 
letting  of  land  by  covenant  always  emerged  as  the 

1  De  Rebus  Albanicis,  pp.  204-5. 


294  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

fundamental  condition  of  tenure  whenever  violence 
was  suspended  and  law  resumed  its  sway. 

The  same  fact  is  evidenced  in  a  still  more  defi- 
nite form  by  numerous  documents  among  my  own 
family  papers.     These  show  how  the  traditional  and 
legally  established  system  of  letting  land  for  fixed 
periods  of  time,  and  for  definite  rents,  was  actually 
worked  in  the  district  of  Kintyre — not  as  regards 
the  Lowland  settlers  only,  but  also  as  regards  the 
native  Highland  population,  which  remained  in  large 
numbers  when  the  Macdonalds  had  fled  to  Ireland. 
This  district  had  always  been  essentially  Insular, 
not  less  in  its  social  state  than  in  its  geographical 
position.     It  had,  indeed,  been  specially  exposed  to 
the  ordinary  abuses  of  Celtic  customs.     The  Leases 
given  by  the  Argyll  family,  soon  after  it  came  into 
possession   of  it,  show  that  the  cultivating  classes 
reaped  an  immediate  advantage  in  respect  to  those 
usages    which   were   everywhere  the  overpowering 
grievance   of  their   lives, — namely,    the    uncertain 
and  arbitrary  exactions  to  which  they  had  been 
liable.     Agricultural  rents,  indeed,  could  not  even 
yet  be  wholly  paid  in  money,  because  money  was 
too    scarce,    and    because    the    burden    of    turning 
produce  into   money  would   have    been    often   too 
heavy  a  burden  for  the  Tenant  to  bear.     A  great 
portion  of  the   rent   was  therefore  generally  still 
paid  in  produce,  so  as  to  take  that  burden  on  the 
Landlord.     But  the  quantity  of  produce  was  always 
definitely  stated  in  the  Lease.     In  like  manner,  old 
feudal  dues  and  services  in  seed-time  and  harvest  "in 


THE  APPEAL  FROM  CHIEFS  TO  OWNERS.          295 

hunting,  in  watching,  and  in  warding"  were  not  yet 
wholly  dropped,  but  some  of  them  are  evidently  mere 
formal  repetitions,  whilst  others  are  referred  to  as 
limited  by  a  well-known  scale  of  use  and  wont. 

In  the  earliest  Lease  now  in  my  possession, 
given  in  Kintyre,  there  is  a  significant  clause  indi- 
cative of  the  condition  of  things  from  what  the 
people  had  suffered  under  their  former  Chiefs. 
This  Lease  refers  to  a  small  holding  which  would 
now  be  called  a  "  Croft,"  and  the  clause  referred 
to  guarantees  to  the  Tenant  "to  be  free  from  any 
payment  of  other  presents  whatsumever  where- 
with the  rest  of  the  country  is  burdened  and 
charged." l  On  the  other  hand,  in  this,  and  in  all 
the  Leases  granted  during  the  rest  of  the  Seven- 
teenth Century  in  this  district,  as  in  all  others, 
however  purely  Highland,  there  is  a  correspond- 
ing precision  in  the  obligations  undertaken  by 
the  Tenants.  In  particular,  the  duration  of  the 
occupancy,  sometimes  for  five,  sometimes  for  twenty- 
one  years,  is  strictly  limited,  and  fortified  by  the 
most  specific  covenants  as  to  the  conditions  in 
which  the  Tenants  were  to  leave  the  houses,  and 
the  fences  of  the  farm,  "  at  their  removing."  They 
are  secured  in  the  enjoyment  of  the  land  only  until 
the  specified  time  is  "  completed  and  outrun."  They 
are  allowed  generally  to  sublet,  but  always,  and 
only,  to  Subtenants  who  shall  "be  of  no  higher 
degree  than  themselves,"  so  that  the  tenure  of  both 

1  Lease  by  James,  Lord  of  Kintyre,  second  son  of  the  seventh  Earl  of 
Argyll,  dated  November  1631. 


296  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

should  expire  together.  Above  all,  agricultural 
Tenants  were  universally  bound  to  obey  the  statutes 
and  regulations  of  the  Courts  of  the  Barony.  It 
was  through  these,  as  we  have  seen,  that  many 
regulations  for  agricultural  improvement  were  laid 
down  and  enforced.  In  the  Leases  themselves, 
however,  some  of  these  obligations  are  inserted, 
as  for  example  in  respect  to  the  planting  of  trees. 
In  these  Leases,  moreover,  there  is  one  very  clear 
indication  of  a  substantial  advance  in  agriculture, 
namely,  in  the  fact  that  a  certain  number  of  loads 
of  hay  and  straw  are  among  the  produce  payable  as 
rent.  Neither  of  these  articles  were  produced,  in 
sufficient  quantities  to  be  so  dealt  with,  in  the 
more  backward  districts  or  in  previous  centuries. 
But  the  main  interest  of  these  Leases  lies  in  their 
very  definite  and  strictly  legal  character.  They  dis- 
prove the  ignorant  notion  that  land  was  ever  let  in 
the  Highlands,  any  more  than  in  the  Lowlands,  on 
the  slovenly  conditions  of  mere  usage  and  tradition, 
or  as  it  is  now  loosely  called,  the  "footing  of 
status."  This  would  have  been  a  footing  not  more, 
but  greatly  less,  favourable  to  the  Tenant,  because 
it  would  have  been  a  footing  outside  the  law  ;  and 
outside  the  law,  in  all  previous  centuries,  there  had 
been  nothing  but  the  indefinite  exactions  of  Celtic 
Chiefship.  It  was  everywhere  the  great  work  of 
Ownership,  and  its  inevitable  tendency,  to  induce 
Landlords  to  carry  down  into  their  own  relations 
with  their  Tenants  the  same  spirit  of  legality,  de- 
finiteness,  and  limitation,  which  they  valued  so 


THE  APPEAL  FROM  CHIEFS  TO  OWNERS.  297 

highly  in  their  own  Charters  from  their  own 
Superiors.  Hence  it  is,  that  in  every  Lease  which 
has  been  preserved  to  us  from  the  earliest  times,  the 
same  precision  of  mutual  agreement  is  always  aimed 
at.1  Hence  it  is  that  the  wording  of  these  Kintyre 
Leases,  granted  in  a  district  not  only  Highland  but 
almost  purely  Insular,  was  as  elaborate,  but  not 
much  more  so,  than  we  have  seen  the  wording  to 
have  been  in  the  case  of  the  Scone  Lease,  granted  in 
the  reign  of  Robert  the  Bruce,  and  indicates  a 
perfect  continuity  of  practice,  and  a  perfect  identity 
of  law  all  over  Scotland  during  a  period  of  nearly 
400  years. 

But  this  is  not  all  that  can  be  shown  in  illus- 
tration of  the  value  and  of  the  working  of  that  great 
change  which  the  Parliament  of  Scotland  promoted, 
when  in  1587  it  made  its  urgent  appeal  from 
Chiefs  to  Owners.  We  have  spoken  hitherto  of  that 
class  of  Tenant  which  held  Leases.  But  in  those 
Leases  themselves  another  class  is  often  mentioned, 
namely,  the  Subtenants  and  Cottars.  What  was 
their  tenure  and  what  was  their  condition  ?  In 
the  Scone  Lease  it  was  expressly  stipulated  that 
when  the  Tacksman  removed,  at  the  end  of  his 
term,  his  Subtenants  should  remove  also.  We  have 
seen  that  in  all  later  Leases  the  same  understand- 
ing is  sustained  in  the  carefully  guarded  provision 
that  Tacksmen  should  not  sublet  to  men  of  any 
"higher  degree"  than  themselves.  It  is  almost 

1  One  example  of  a  sub-lease  is   giveu  in  the  Book  of  Grant,  dated 
1514. 


298  SCOTLAND  AS  IT  WAS  AND  AS  IT  IS. 

needless  to  add  that  in  that  reasonable  and  logi- 
cal interpretation  of  men's  mutual  rights  and  obli- 
gations towards  each  other  in  which  all  law 
essentially  consists,  and  upon  which  its  mainte- 
nance depends,  it  is  not  according  to  reason  or 
justice  that  the  man  \vho  hires  land  from  another 
should  be  able  to  dispose  of  it  to  others  beyond 
the  term  which  is  the  limit  of  his  own  rights 
concerning  it.  It  is  therefore  clear  that  the  foot- 
ing on  which  Subtenants  and  Cottars  were  placed 
under  the  Scone  Lease,  granted  so  formally  in 
1311,  was  the  footing  on  which  they  continued  to 
hold  under  Tacksmen  during  all  the  intervening  cen- 
turies. But  as  the  Leases  never  did  place  the  Tacks- 
man  under  restrictions  as  to  the  rent,  whether  in 
produce  or  in  services,  which  he  might  be  able  to 
get  from  his  Subtenants,  it  follows  that  this  class 
of  men  were  under  no  protection  either  from 
Charter  or  from  Lease,  and  must  have  been  longer 
exposed  than  any  other  class  to  the  abuses  inse- 
parable from  the  old  and  arbitrary  usages  of  the 
Celtic  Clans.  Just  as  most  of  the  greater  Landlords 
combined  the  characters  of  Chief  and  Owner,  so  did 
the  Tacksman  combine  for  a  limited  time  as  much 
of  these  two  kinds  of  authority  as  his  Lease  might 
give  to  him.  But  as  a  mere  Tacksman  differs  essen- 
tially from  an  Owner,  and  cannot  be  moved  by  the 
same  long  range  of  motive,  since  he  has  not  the  same 
permanence  of  interest,  he  would  be  under  stronger 
temptation  than  the  Owner  to  stretch  his  power  over 
his  Subtenants.  Clearly,  therefore,  it  is  in  the  rela- 


THE  APPEAL  FROM  CHIEFS  TO  OWNERS.  299 

tion  of  these  two  classes  to  each  other  that  we  should 
expect  to  find  the  last  relics  of  unwritten  Celtic 
customs,  and  the  latest  exhibitions  of  their  effect. 

And  as  it  might  have  been  expected,  so  it  is. 
Moreover,  as  might  have  been  expected  also,  the 
remedy  here  likewise  lay  in  the  same  appeal  from 
the  spirit  and  the  interests  of  Celtic  Feudalism  to 
the  spirit  and  the  interests  of  legal  Ownership. 

Although,  on  this  subject,  the  evidence  is 
abounding,  it  is  not  evidence  that  has  come  much 
under  the  notice  of  the  Historian.  It  has  lain  hid 
among  the  dusty  documents  connected  with  the 
management  of  Estates.  The  significance  and  in- 
terest of  the  subject  has  escaped  the  attention  of 
those  who  grub  among  old  papers  to  hunt  a  pedigree 
or  to  picture  manners.  Fortunately  I  am  in  pos- 
session of  some  of  these  documents  which  are  of  the 
highest  interest,  both  as  regards  the  authority 
of  those  from  whom  they  emanate — the  time  to 
which  they  refer — and  the  lands  and  people  they 
describe.  Some  words  of  explanation,  however, 
are  required  in  respect  to  each  of  these  points, 
especially  on  the  point  of  time,  and  the  significance 
which  belongs  to  them  on  account  of  their  place  in 
History. 


END  OF  VOL.  I. 


PRINTED   BY   T.    AND   A.    CONSTABLE,   PRINTERS    TO    HER   MAJESTY, 
AT   THE   EDINBURGH   UNIVERSITY    PRESS. 


William  P.  Skene. 
Celtic  Scotland.     A  History  of  Ancient  Alban.     By 

William  F.  Skene,  D.C.L.,  LL.D.,  Historiographer  Royal  for  Scotland. 
3  vols.  demy  8vo,  with  Maps,  45s. 

Vol.        I.      HISTORY   AND   ETHNOLOGY.       15s. 
Vol.     II.      CHURCH   AND   CULTURE.      15s. 
Vol.   III.       LAND   AND   PEOPLE.       15s. 


"  Forty  years  ago  Mr.  Skene  published  a  small  historical  work  on  the  Scottish 
Highlands  which  has  ever  since  been  appealed  to  as  an  authority,  but  which  has 
long  been  out  of  print.  The  promise  of  this  youthful  effort  is  amply  fulfilled 
in  the  three  weighty  volumes  of  his  maturer  years.  As  a  work  of  historical  research 
it  ought,  in  our  opinion,  to  take  a  very  high  rank." — Times. 


The  Four  Ancient   Books   of  Wales,   containing  the 

Cymric  Poems  attributed  to  the  Bards  of  the  Sixth  Century.     2  vols. 
8vo,  with  Maps  and  Facsimiles,  36s. 

"  Mr.  Skene's  book  will,  as  a  matter  of  course  and  necessity,  find  its  place  on 
the  tables  of  all  Celtic  antiquarians  and  scholars." — Archccologia  Cambrensis. 


Duke  of  Argyll. 
Scotland  as  It  Was  and  as  It  Is.      By  the  Duke  of 

Argyll.     2  vols.  demy  8vo.     Illustrated,  28s. 
CONTENTS  OF  VOL.  I. 


I.  Celtic  Feudalism. 
II.  The  Age  of  Charters. 
III.  The  Age  of  Covenants. 


IV.  The  Epoch  of  the  Clans. 
V.  The   Appeal   from   Chiefs    to 
Owners. 


CONTENTS  OF  VOL.  II. 

I.  The  Response  to  the  Appeal,    i  III.   The  Burst  of  Industry. 

II.  Before  the  Dawn.  IV.  The  Fruits  of  Mind. 


11  BOOKS    ON    HISTOKY   AND    ARCHEOLOGY. 

THE  RHIND  LECTURES  IN  ARCHEOLOGY. 

Dr.  Arthur  Mitchell—  for  1876  and  1878. 
The  Past  in  the  Present—  What  is  Civilisation?     By 

Arthur    Mitchell,   C.B.,    M.D.,    LL.D.       1    vol.    demy  8vo,   with   148 
Woodcuts,  15s. 

CONTENTS. 

I.  The  Spindle  and  Whorl.  IV.  Cave  Life. 

II.  Craggans  and  Querns,  etc.          V.  Stone,  Bronze,  and  Iron  Ages. 
III.  Beehive  Houses,  etc.  VI.  Superstitions. 

"  Few  more  interesting  Archaeological  works  have  lately  been  published  than 
the  ten  '  Rhind  Lectures  '  which  make  up  Dr.  Mitchell's  volume,  The  Past  in  the 
Present.  We  must  thank  him  heartily  for  the  manner  and  the  method  of  his  book, 
for  the  curious  and  valuable  facts  which  lie  has  collected  from  personal  observation, 
and  for  the  admirable  woodcuts  which  adorn  as  well  as  illustrate  his  volume.  "— 
Preview. 


Dr.  Joseph  Anderson—  for  1879  to  1882. 

Scotland    in    Early    Christian    Times.       By    Joseph 

Anderson,  LL.D.,  Keeper  of  the  National  Museum  of  the  Antiquaries  of 
Scotland.     2  vols.  demy  Svo,  .profusely  Illustrated.     12s.  each  volume. 

CONTENTS  OK  VOL.  I. 

Celtic  Churches  —  Monasteries  —  Hermitages  —  Round  Towers  —  Illumin- 
ated Manuscripts  —  Bells  —  Crosiers  —  Reliquaries,  etc. 

CONTENTS  OF  VOL.  II. 

Celtic  Medal-Work  and  Sculptured  Monuments,  their  Art  and  Symbolism 
—  Inscribed  Monuments  in  Runics  and  Oghams  —  Bilingual  Inscriptions,  etc. 

Scotland    in    Pagan    Times.       By    Joseph    Anderson, 

LL.D.     2  vols.  demy  Svo,  profusely  Illustrated.     12s.  each  volume. 

CONTENTS  OF  VOL.  I. 

The  Iron  Age.  —  Viking  Burials  and  Hoards  of  Silver  and  Ornaments  — 
Arms,  Dress,  etc.,  of  the  Viking  Time  —  Celtic  Art  of  the  Pagan  Period  — 
Decorated  Mirrors  —  Enamelled  Armlets  —  Architecture  and  Contents  of  the 
Brochs  —  Lake-  Dwellings  —  Earth  Houses,  etc. 

CONTENTS  OF  VOL.  II. 

Tlie  Jironze  and  Stout  Ages.  —  Cairn  Burial  of  the  Bronze  Age  and 
Cremation  Cemeteries  —  Urns  of  Bronze  Age  Types  —  Stone  Circles  —  Stone 
Settings  —  Gold  Ornaments  —  Implements  and  Weapons  of  Bronze  —  Cairn 
Burial  of  the  Stone  Age  —  Chambered  Cairns  —  Urns  of  Stone  Age  Types  — 
Implements  and  Weapons  of  Stone. 

Sir  Samuel  Ferguson—  for  1884. 
Ogham  Inscriptions  in  Ireland,  Wales,  and  Scotland. 

By  the  late  Sir  Samuel  Ferguson.     1  vol.  demy  Svo. 


BOOKS   ON    HISTORY   AND    ARCHEOLOGY.  ill 


Thomas  8.  Muir. 

Ecclesiological  Notes  on  some  of  the  Islands  of  Scot- 
land, with  other  Papers  relating  to  Ecclesiological  Eemains  on  the  Scot- 
tish Mainland  and  Islands.  By  Thomas  S.  Muir,  author  of  Characteristic* 
of  Church  Architecture,  etc.  1  vol.  demy  8vo,  with  numerous  Illustra- 
tions, 21s. 

Dr.  Munro. 
Ancient  Scottish  Lake-Dwellings  or  Crannogs,  with  a 

Supplementary  Chapter  on  Remains  of  Lake-Dwellings  in  England.  By 
Robert  Munro,  M.D.,  F.S.A.  Scot.  1  vol.  demy  8vo,  profusely  Illus- 
trated, 21s. 

"  A  standard  authority  on  the  subject  of  which  it  treats." — Times. 
"...   Our  readers  may  be  assured  that  they  will  find  very  much  to  interest 
and  instruct  them  in  the  perusal  of  the  work." — Athenmim. 


C.  Maclagan. 
The  Hill  Forts,  Stone  Circles,  and  other  Structural 

Remains  of  Ancient  Scotland.  By  C.  Maclagan,  Lady  Associate  of  the 
Society  of  Antiquaries  of  Scotland.  With  Plans  and  Illustrations. 
Folio,  31s.  6d. 

"We  need  not  enlarge  on  the  few  inconsequential  speculations  which  rigid 
archteologists  may  find  in  the  present  volume.  We  desire  rather  to  commend  it  to 
their  careful  study,  fully  assured  that  not  only  they,  but  also  the  general  reader, 
will  be  edified  by  its  perusal." — Scotsman. 

Sir  James  Simpson. 

Archaeological  Essays.  By  the  late  Sir  James  Simp- 
son, Bart.  Edited  by  the  late  John  Stuart,  LL.D.  2  vols.  4to,  Illus- 
trated, 42s.  A  few  copies  may  be  had  at  21s. 


CONTENTS. 


1.  Archaeology. 

2.  Inchcolm. 

3.  The  Cat-Stane. 

4.  Magical  Charm -Stones, 
j).  Pyramid  of  Gizeh. 


6.  Leprosy  and  Leper  Hospitals. 

7.  Greek  Medical  Vases. 

8.  Was  the  Roman  Army  provided 

with  Medical  Officers  ? 

9.  Roman  Medicine  Stamps,  etc.  etc. 


Sir  Herbert  Maxwell. 
Studies  in  the  Topography  of  Galloway,  with  a  List 

of  nearly  4000  Names  of  Places,  and  Remarks  on  their  Origin  and  Mean- 
ing.    By  Sir  Herbert  Maxwell,  Bart.,  M.P.     1  vol.  demy  8vo. 


iv  BOOKS    ON    HISTORY   AND   ARCHAEOLOGY. 


E.  W.  Robertson. 

Scotland  under  her  Early  Kings.     A  History  of  the 

Kingdom  to  the  close  of  the  13th  century.     By  E.  William  Robertson. 
2  vols.  demy  8vo,  cloth,  36s. 

Historical  Essays,  in  connection  with  the  Land  and 

the  Church,  etc.     By  E.  William  Robertson,  Author  of  "  Scotland  under 
her  Early  Kings.''     1  vol.  demy  8vo,  10s.  fid. 


Gairdner  and  Spedding. 
Studies  in  English  History.     By  James  Gairdner  and 

James  Spedding.     1  vol.  demy  8vo,  12s. 

Contents. — The  Lollards — Sir  John  Falstaff — Katherine  of  Arragon's  First 
and  Second  Marriages — Case  of  Sir  Thomas  Overbury — Divine  Right  of 
Kings — Sundays,  Ancient  and  Modern. 


O-.  W.  T.  Omond. 

The  Lord  Advocates  of  Scotland  from  the  close  of  the 

Fifteenth  Century  to  the  passing  of  the  Reform  Bill.      By  G.   W.  T. 
Omond,  Advocate.     2  vols.  demy  8vo,  28s. 

Arniston  Memoirs — From  the  16th  to  the  19th  Cen- 
tury. Edited,  from  Family  Papers,  by  Geo.  W.  T.  Omond,  Advocate. 
1  vol.  small  4to,  Illustrated. 


Captain  Dunbar. 
Social  Life  in  Former  Days  ;  chiefly  in  the  Province 

of  Moray.     Illustrated  by  Letters  and  Family  Papers.     By  E.  Dunbav 
Dunbar,  late  Captain  21st  Fusiliers.     2  vols.  demy  8vo,  19s.  6d. 


Dr.  Alexander. 
Notes  and  Sketches  of  Northern   Rural  Life  in  the 

Eighteenth    Century.       By    William    Alexander,    LL.D.,    Author     of 
"Johnny  Gibb  of  Gushetneuk."     Ex.  fcap.  8vo,  2s. 

"This  delightful  little  volume.     It  is  a  treasure."— Daily  Review. 


BOOKS    ON    HISTORY   AND    ARCHAEOLOGY.  V 

Alexander  Maxwell. 
The  History  of  Old  Dundee,  narrated  out  of  the  Town 

Council  Register,  with  Additions  from  Contemporary  Annals.  By 
Alexander  Maxwell,  F.S.A.  Scot.  1  vol.  small  4to,  Cloth,  21s.  ;  Rox- 
burghe,  24s. 

John  Henderson. 
Notes  of  Caithness  Family    History.       By  the  late 

John  Henderson,  W.S.     1  vol.  4to,  31s.  6d. 


R.  B.  Armstrong. 
The     History     of    Liddesdale,     Eskdale,     Ewesdale, 

Wauchopedale,  and  the  Debateable  Land.  Part  I.,  from  the  Twelfth 
Century  to  1530.  By  Robert  Bruce  Armstrong.  The  edition  is  limited 
to  275  copies  demy  quarto,  and  105  copies  on  large  paper  (10  inches  by 
13),  42s.  and  84s. 

T.  Craig-Brown. 
The  History  of  Selkirkshire ;    Chronicles  of  Ettrick 

Forest.     By  T.  Craig-Brown.     2  vols.  demy  4to,  Illustrated,  £4,  10s. 


Dr.  Alexander  Laing. 
Lindores  Abbey,  and  the  Burgh  of  Newburgh  ;  Their 

History  and  Annals.  By  Alexander  Laing,  LL.D.,  F.S.A.  Scot.  1  vol. 
small  4to,  with  Index,  and  thirteen  full-page  and  ten  Woodcut  Illus- 
trations, 21s. 

"  This  is  a  charming  volume  in  every  respect." — Notes  and  Queries. 
"  The  prominent  characteristics  of  the  work   are  its  exhaustiveness  and  the 
thoroughly  philosophic  spirit  in  which  it  is  written."— Scotsman. 


William  Boss. 
Aberdour  and  Inchcolme.     Being  Historical  Notices 

of  the  Parish  and  Monastery,  in  Twelve  Lectures.  By  the  Rev.  William 
Ross,  LL.D.,  Author  of  "Burgh  Life  in  Dunfermline  in  the  Olden 
Time."  1  vol.  crown  8vo,  6s. 

"We  know  no  book  which  within  so  small  a  compass  contains  so  varied,  so 
accurate,  and  so  vivid  a  description  of  the  past  life  of  the  Scottisli  people,  whether 
ecclesiastical  or  social,  as  Dr.  Ross's  Aberdour  and  Inchcolme."— Scottish  Review. 


Vi  BOOKS   ON    HISTORY    AND   ARCHEOLOGY. 


Andrew  Jervise. 
Epitaphs  and  Inscriptions  from  Burial-Grounds  and 

Old  Buildings  in  the  North-East  of  Scotland.  By  the  late  Andrew 
Jervise,  F.S.A.  Scot.  With  a  Memoir  of  the  Author.  Vol.  II.  Cloth, 
small  4to,  32s.  ;  Roxburghe  Edition,  42s. 

The    History   and    Traditions   of   the    Land   of    the 

Lindsays  in  Angus  and  Mearns.  By  the  late  Andrew  Jervise,  F.S.A. 
Scot.  New  Edition,  Edited  and  Revised  by  the  Rev.  James  Gammack, 
M.A.  1  vol.  demy  Svo,  Illustrated,  14s.  ;  Large  Paper  (of  which  only 
50  were  printed),  demy  4to,  42s. 

Memorials   of  Angus  and  the   Mearns  :   an  Account 

Historical,  Antiquarian,  and  Traditionary,  of  the  Castles  and  Towns 
visited  by  Edward  i.,  and  of  the  Barons,  Clergy,  and  others  who  swore 
Fealty  to  England  in  1291-6.  By  the  late  Andrew  Jervise,  F.S.A.  Scot. 
Rewritten  and  corrected  by  the  Rev.  James  Gammack,  M.A.  Illustrated 
with  Etchings  by  W.  Hole,  A.R.S.A.  2  vols.  demy  Svo,  28s.  ;  large 
paper,  2  vols.  demy  4to,  63s . 


Bishop  Forbes. 

Kalendars  of  Scottish  Saints,  with  Personal  Notices 

of  those  of  Alba,  etc.  By  Alexander  Penrose  Forbes,  D.C.L.,  Bishop  of 
Brechin.  4to,  price  £3,  3s.  A  few  copies  for  sale  on  large  paper, 
£5,  15s.  6d. 

"  A  truly  valuable  contribution  to  the  archeology  of  Scotland." — Guardian. 


GK  H.  Forbes. 
Missale  Drummondiense.     The  Ancient  Irish  Missal 

in  the  possession  of  the  Baroness  Willoughby  d'Eresby.     Edited  by  the 
Rev.  G.  H.  Forbes.     Half-morocco,  demy  Svo,  12s. 


James  Miln. 

Researches  and  Excavations  at   Carnac  (Morbihan), 

the  Bossenno,  and  Mont  St.  Michel  By  James  Miln.  Royal  Svo,  with 
Maps,  Plans,  and  numerous  Illustrations  in  Wood-Engraving  and 
Chromo-lithography,  42s. 


BOOKS   ON    HISTORY   AND   ARCHEOLOGY.  vil 


JAMES  MILK — Continued. 

Excavations  at  Carnac  (Brittany),  a  Record  of  Archaeo- 
logical Researches  in  the  Alignments  of  Kermario.  By  James  Miln. 
Royal  8vo,  with  Maps,  Plans,  and  numerous  Illustrations  in  Wood- 
Engraving,  15s.  The  two  vols.  may  now  be  had  for  31s.  6d.  net. 


Macgibbon  and  Boss. 

The  Castellated  and  Domestic  Architecture  of  Scot- 
land, from  the  Twelfth  to  the  Eighteenth  Century.  By  David  Macgibbon 
and  Thomas  Ross,  Architects.  Vol.  I.,  containing  about  500  Illustrations 
of  Ground  Plans,  Sections,  Views,  Elevations,  and  Details,  royal  8vo,  42s- 
Vol  II.  will  be  published  immediately. 

Prof.  Baldwin-Brown. 
From  Schola  to  Cathedral.    A  Study  of  Early  Christain 

Architecture  in  its  relation  to  the  life  of  the  Church.  By  G.  Baldwin- 
Brown,  Professor  of  Fine  Art  in  the  University  of  Edinburgh.  1  vol. 
demy  8vo,  Illustrated,  7s.  6d. 

The  book  treats  of  the  beginnings  of  Christian  Architecture,  from  the 
point  of  view  of  recent  discoveries  and  theories,  with  a  special  reference  to 
the  outward  resemblance  of  early  Christain  communities  to  other  religious 
associations  of  the  time. 


Sir  George  Dasent. 
The  Story  of  Burnt  Njal ;  or,  Life  in  Iceland  at  the 

end  of  the  Tenth  Century.  From  the  Icelandic  of  the  Njals  Saga.  By 
Sir  George  Webbe  Dasent,  D.C.L.  2  vols.  demy  8vo,  with  Maps  and 
Plans,  28s. 

Gisli   the   Outlaw.      From   the   Icelandic.      By    Sir 

George  Webbe  Dasent,  D.C.L.     1  vol.  small  4to,  with  Illustrations,  7s.  6d. 


Popular    Genealogists;     or,    the    Art    of   Pedigree- 
making.    Crown  8vo,  4s. 


Vlll  BOOKS    ON    HISTORY   AND    ARCHAEOLOGY. 


R.  W.  Cochran-Patrick. 

Records  of  the  Coinage  of  Scotland,  from  the  earliest 

period  to  the  Union.  Collected  by  R.  W.  Cochran-Patrick,  LL.D.,  etc. 
Only  two  hundred  and  fifty  copies  printed.  2  vols.  4to,  with  16  full- 
page  Illustrations.  Five  guineas. 

"  When  we  say  that  these  two  volumes  coutain  more  than  770  records,  of  which 
more  than  550  have  never  been  printed  before,  and  that  they  are  illustrated  by  a 
series  of  Plates,  by  the  autotype  process,  of  the  coins  themselves,  the  reader  may 
judge  for  himself  of  the  learning,  as  well  as  the  pains,  bestowed  on  them  both  by 
the  Author  and  the  Publisher."—  Times. 

Early  Records  relating  to  Mining  in  Scotland  :  Col- 
lected by  R.  W.  Cochran-Patrick.     1  vol.  demy  4to.,  31s.  6d. 

"Such  a  book,  .  .  .  revealing  as  it  does  the  first  developments  of  an  industry 
which  has  become  the  mainspring  of  the  national  prosperity,  ought  to  be  specially 
interesting  to  all  patriotic  Scotchmen. " — Saturday  Review. 

The  Medals  of  Scotland  :  a  Descriptive  Catalogue  of 

the  Royal  and  other  Medals  relating  to  Scotland.  By  R.  W.  Cochran- 
Patrick.  Dedicated  by  special  permission  to  Her  Majesty  the  Queen. 
1  vol.  demy  4to,  with  plates  in  facsimile  of  all  the  principal  pieces,  £3,  3s. 


Mark  Napier. 
The   Lanox  of  Auld : "    An   Epistolary    Review  of 

"The  Lennox,  by  William  Fraser."     By  Mark  Napier.     With  Wood- 
cuts and  Plates.     1  vol.  4to,  15s, 


Sir  William  Stirling- Maxwell. 
Antwerp  Delivered  in  MDLXXVII.  :    A  Passage  from 

the  History  of  the  Netherlands,  Illustrated  with  Facsimiles  of  a  rare 
series  of  Designs  by  Martin  de  Vos,  and  of  Prints  by  Hogcnberg,  the 
Lierixes,  etc.  By  Sir  William  Stirling-Maxwell,  Bart.,  K.T.,  and  M.P. 
1  vol.  folio,  5  guineas. 

"  A  splendid  folio  in  richly  ornamented  binding,  protected  by  an  almost  equally 
ornamental  slip-cover.  .  .  .  Remarkable  illustrations  of  the  manner  in  which  the 
artists  of  the  time  '  pursued  their  labours  in  a  country  ravished  by  war,  and  in  cities 
ever  menaced  by  siege  and  sack.'  " — Scotsman. 


EDINBURGH:  DAVID  DOUGLAS. 


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